Ethics, Politics, Inequality: New Directions 9780796926142

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Published by HSRC Press Private Bag X9182, Cape Town 8000, South Africa www.hsrcpress.ac.za First published 2021 ISBN (soft cover) 978-0-7969-2596-1 ISBN (pdf) 978-0-7969-2597-8 © 2021 Human Sciences Research Council This book has undergone a double-blind independent peer-review process overseen by the HSRC Press Editorial Board. The views expressed in this publication are those of the authors. They do not necessarily reflect the views or policies of the Human Sciences Research Council (the Council) or indicate that the Council endorses the views of the authors. In quoting from this publication, readers are advised to attribute the source of the information to the individual author concerned and not to the Council. The publishers have no responsibility for the continued existence or accuracy of URLs for external or third-party internet websites referred to in this book and do not guarantee that any content on such websites is, or will remain, accurate or appropriate. Cover design by Riaan Wilmans Copy-edited by Simone Chiara van der Merwe Typeset by Robin Yule Proofread by Karen Press Printed by Capitil Press, Paarden Eiland, South Africa Distributed in Africa by Blue Weaver Tel: +27 (0) 21 701 4477 | Fax Local: +27 (0) 21 701 7302 www.blueweaver.co.za Distributed in Europe and the United Kingdom by Eurospan Distribution Services (EDS) Tel: +44 (0) 17 6760 4972 | Fax: +44 (0) 17 6760 1640 www.eurospanbookstore.com Distributed in United States, Canada and Asia except China by Lynne Rienner Publishers, Inc. Tel: +1 303 444 6684 | Fax: +001 303 444 0824 | Email: [email protected] www.rienner.com No part of this publication may be reproduced, stored in a retrieval system, or transmitted by any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission from the copyright owner. To copy any part of this publication, you may contact DALRO for information and copyright clearance. Tel: 086 12 DALRO (or 086 12 3256 from within South Africa); +27 (0) 11 712 8000 Fax: +27 (0) 11 403 9094 Postal Address: P O Box 31627, Braamfontein 2017, South Africa www.dalro.co.za Any unauthorised copying could lead to civil liability and/or criminal sanctions. Suggested citation: Narnia Bohler-Muller, Crain Soudien, Vasu Reddy (Eds) (2021) Ethics, Politics, Inequality: New Directions. Cape Town: HSRC Press

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Table of contents

List of figures and tables  v Abbreviations and acronyms  vii Acknowledgements viii Foreword ix Introduction: A South African accounting of poverty and inequality  xi 1 An ethico-political approach to poverty and inequality: Embodying care and corporeal citizenship  1 Narnia Bohler-Muller, Vasu Reddy and Crain Soudien Part 1: Politics, ethics and the state 2 Reconsidering South Africa’s electoral system: What are the alternatives?  29 Sithembile Mbete and Vasu Reddy 3 Thinking ethically about women, power and land in South Africa  54 Narnia Bohler-Muller, Nokuthula Olorunju and Karabo Magagane 4 Presidential leadership and accountability, from Mandela to Ramaphosa  77 Richard Calland and Mabel Nederlof Sithole Part 2: The South African political economy 5 A normative approach to the minimum core: Minimum requirements for a life of dignity  101 Gary Pienaar, Michael Cosser and Yul Derek Davids 6 Diminishing the power of the X? The electoral effect of corruption perceptions 133 Benjamin J Roberts, Ngqapheli Mchunu, Steven L Gordon and Jarè Struwig 7 An empirical assessment of the national minimum wage in South Africa  154 Haroon Bhorat, Ravi Kanbur and Benjamin Stanwix 8 Taxation, inequality and a progressive economy  173 Imraan Valodia and David Francis Part 3: South African society 9 South African food politics: Human rights, security and sovereignty  195 Patrick Bond, Thobekile Zikhali and Edward Thabani Mdlongwa 10 The right to education in South Africa: Policy tensions and the quest for balance 220 Crain Soudien, Andrea Juan and Jaqueline Harvey

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Access to healthcare: Life Esidimeni and the vulnerability of the mentally ill  239 Ames Dhai, Jillian Gardner and Safia Mahomed

Part 4: Wellbeing and identity 12 The pursuit of inclusive health services: Inequalities and intersectionality  261 Mzikazi Nduna and Sibusiso Mkwananzi 13 Anti-immigrant violence as social group control vigilantism? Understanding attitudes, behaviours and solutions  285 Steven L Gordon, Marie Wentzel and Johan Viljoen Part 5: Culture 14 Cultures of sexualities and gender in Afrika’s changing nation  305 Zethu Matebeni 15 Through the lens of post-apartheid filmmaking: Spaces of poverty and social inequality in Yesterday, Jerusalema and District 9 316 Subeshini Moodley 16 Diarised precarity and the crisis of informal settlements  337 Grace A Musila Part 6: South Africa and the world 17 South Africa and the global economy  355 Fuad Cassim 18 A foreign policy of ubuntu? South African foreign policy values and priorities 370 Joleen Steyn Kotze and Steven L Gordon 19 Is pan-Africanism the future?  401 Francis Kornegay About the authors  420 Index 423

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List of figures and tables

List of figures Figure 5.1 Figure 5.2 Figure 6.1 Figure 6.2 Figure 6.3 Figure 6.4 Figure 6.5 Figure 6.6 Figure 6.7 Figure 7.1 Figure 7.2 Figure 7.3 Figure 9.1 Figure 12.1 Figure 12.2 Figure 13.1 Figure 13.2 Figure 13.3 Figure 17.1 Figure 17.2 Figure 17.3

Views regarding the importance of government provision for the poor as required by the Constitution, South Africa, 2017  102 Views regarding government performance in providing the poor with basic services, South Africa, 2017  103 Mean scores for the Public Corruption Index and the Executive Corruption Index in South Africa, 1910–2018  137 Public views regarding the three most important challenges facing South Africa in 2003 and 2018  139 Percentage of South Africans identifying corruption as one of the top three challenges facing the country, 2003–18  140 Public evaluation of government performance in handling corruption in one’s local place of residence, 2012–18  141 Corruption perceptions and views on the electoral system, South Africa, 2017 144 Corruption perceptions and the intention to vote, South Africa, 2018–19 145 Corruption perceptions and electoral responses to unfulfilled expectations, South Africa, 2018–19   146 Minimum wage levels and real percentage changes, by sector in South Africa, 2017  155 Proportion of workers in South Africa above and below the NMW, by sector, 2017  158 Theoretical employment impacts of minimum wage increases in South Africa 159 Different levels of food security  213 Average annual income by race, South Africa 2014–15  263 Population pyramid showing age and sex distribution for South Africa, 2019 266 Public attitudes across 18 countries towards the economic impact of international migrants on the nation, 2018  289 Public attitudes across 18 countries towards the security impact of international migrants on the nation, 2018  289 Public attitudes towards vigilantism and self-help in South Africa, 2018 292 Economic growth in South Africa and other emerging markets, 2007–18   361 Sector size in the South African economy, second quarter of 2018  362 South Africa: GDP and investment growth, first quarter of 2010 to fourth quarter of 2018  364

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Figure 18.1 Self-reported knowledge of world affairs by gender and educational attainment in South Africa, 2016  382 Figure 18.2 Overview of levels of self-reported knowledge of international affairs among the general public, South Africa, 2016 (%)  383 Figure 18.3 Views among the South African general public on the importance of South Africa’s role as a global leader in 2016 as compared to 10 years prior  385 Figure 18.4 Public evaluations of South Africa’s position in the world by self-reported knowledge of world affairs, 2016  386 Figure 18.5 Public perceptions of the importance of international politics and world affairs for South Africa, 2016 (%)  387 Figure 18.6 Support amongst the general South African public for international agencies and actors, 2013  392

List of tables Table 3.1 Table 5.1

Table 6.1 Table 6.2 Table 6.3 Table 7.1 Table 7.2 Table 7.3 Table 7.4 Table 8.1 Table 8.2 Table 8.3 Table 8.4 Table 12.1 Table 13.1 Table 17.1 Table 17.2 Table 17.3 Table 18.1 Table 18.2

Women’s property rights under customary law, in the past and currently  68 Indicators of the right to water and sanitation, as per the AAQ formula of the SPII  111 Electoral participation in national and provincial elections in South Africa, 1999–2019   135 Corruption perceptions and psychological engagement in voting, South Africa, 2018–19  143 Corruption perceptions and reported voter registration, South Africa, 2018–19 145 The impact of sectoral minimum wages in South Africa, 2005–18  156 Linkages between wages, labour market status and household size in South Africa, 2017  161 Projected impacts of a national minimum wage (NMW) on poverty and inequality in South Africa  162 The level and depth of minimum wage violation in South Africa, 2016  167 Contribution to tax revenue in South Africa, 2014/15 and 2018/19 (%) 176 South African income deciles, 2011 levels  178 The progressivity of indirect taxes in South Africa, 2010/11  179 Estimated increase in household expenditure due to the VAT increase in South Africa (2018 prices)  182 Mid-year population estimates for South Africa by population group and sex, 2020  262 Participation by the adult population in anti-immigrant violence in South Africa, 2015–18  294 GDP composition by expenditure in southern Africa, 2000–15 (%)  360 Macroeconomic performance, South Africa, 2008–18  365 South Africa’s total investment over GDP in comparison with other emerging markets, 2008–18  365 Public preferences for specified foreign policy goals by political affiliation (multiple response), South Africa, 2016 (%)  388 Public preferences for specified foreign policy goals, indexed (0–1) by selected subgroups, South Africa, 2016 (%)  390

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Abbreviations and acronyms

AIDS ANC AU CC CEDAW

acquired immune deficiency syndrome African National Congress African Union Constitutional Court Convention on the Elimination of All Forms of Discrimination against Women CESCR Committee on Economic, Social and Cultural Rights CRPD Convention on the Rights of Persons with Disabilities CSG child support grant DA Democratic Alliance EFF Economic Freedom Fighters FAO Food and Agricultural Organization GDP gross domestic product HIV human immunodeficiency virus HSRC Human Sciences Research Council ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IEC Electoral Commission of South Africa ILO International Labour Organization IMF International Monetary Fund MP Member of Parliament NDP National Development Plan 2030 Nedlac National Economic Development and Labour Council NGO non-governmental organisation NPA National Prosecuting Authority NPC National Planning Commission OAU Organisation of African Unity OECD Organization for Economic Co-operation and Development RDP Reconstruction and Development Programme SADC Southern African Development Community SARS South African Revenue Service SASAS South African Social Attitudes Survey SDG Sustainable Development Goal SER socioeconomic right Stats SA Statistics South Africa UDHR Universal Declaration of Human Rights UK United Kingdom UN United Nations USA United States of America VAT value-added tax WHO World Health Organization vii

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Acknowledgements

A book such as Ethics, Politics, Inequality: New directions is not the effort of a small team – quite the opposite, in fact. We have many people to thank who have dedicated time over the past two years to bringing this book to fruition. First, as the volume editors we would like to express our appreciation to our two outstanding project managers, Dr Yul Derek Davids and Dr Gerard Hagg from the Developmental, Capable and Ethical State (DCES) research division of the Human Sciences Research Council (HSRC), for tirelessly keeping us on our toes and pushing us – graciously – to meet the tight deadlines imposed. Your efforts do not go unrecognised. Second, we would like to thank the HSRC Press for their support in finalising this hefty manuscript – particularly Charlotte Imani, who capably led us through the process. Of course, no edited volume is possible without the concerted and dedicated efforts of all the contributors, who produced excellent contributions and actively participated in the contributors’ workshop held in 2019. The Covid-19 pandemic hit South Africa as we were receiving the first drafts of the chapters. Despite the challenges of lockdown and teleworking, our contributors worked under pressure to place their chapters within the context of this unprecedented international crisis and to undertake relevant revisions. Finally, we owe an enormous debt of gratitude to the blind reviewers of this edition for their detailed and constructive comments. The volume has been greatly improved because of their valued insights. It has not been an easy year for any of us, and we are grateful that despite the lockdown we were able to complete this edition of State of the Nation on time, with the support of our colleagues and families. Dankie, thank you, ngiyabonga, re a leboga, ke a leboha haholo, ndza nkhensa, ke itumetse, ro livhuwa, enkosi.

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Foreword

In this the tenth edition of State of the Nation since 2003, the editors return to consider issues that have been explored in earlier editions: inequality, which was explored in 2018, 2014 and 2012−3, and politics, explored in particular in 2016. In this edition, however, the themes of inequality and politics are being explored through a new lens: that of ethics. The concept of ethics adopted in the volume has at least two aspects: the first, argued for in the first chapter by Bohler-Muller, Reddy and Soudien, is an ‘ethics of care’, in which ‘a democratic project should … enlarge and energise the connection between care and politics’ (p. 3) and thus address the challenges of inequality and poverty. The second relates to an ethics of leadership, explored in the chapter by Calland and Nederlof Sithole on the Presidency. In defining an ethics of leadership, the authors draw on the work of Den Hartog who argues that ethical leaders ‘act with fairness, respect and integrity: make principled choices, are trustworthy and do not practice favouritism’. Viewing the current challenges of our nation through the lens of ethics feels particularly appropriate in a nation disfigured by inequality and poverty, which have been deepened as we know by the COVID-19 pandemic, on the one hand, and by the corrupt misuse of public funds, now being laid bare in the State Capture Commission, on the other. The need for an ethics of care was tragically illustrated by the Life Esidemeni catastrophe, clearly analysed in this collection by Dhai, Gardner and Mahomed. It is explored too in the chapter on health care and intersectionality by Nduna and Mkwananzi and in Musila’s critique of the humanitarian responses to the perils faced by shack-dwellers in informal communities. The consequences of corruption for democratic practice is, amongst others, apparent from the analysis by Roberts, Mchunu, Gordon and Struwig of the impact of perceptions of corruption, and government responses to it, on voting. As is now a hallmark of the State of the Nation volumes, Ethics, Politics, Inequality: New Directions draws both established and emerging scholars from across a wide range of disciplines to discuss what are arguably the greatest challenges facing our nation. There are important chapters assessing key government interventions in the economy in recent years, notably a careful assessment (by Bhorat, Kanbur and Stanwix) of the likely impact of the National Minimum Wage introduced in 2018, a consideration of tax policy (by Valodia and Francis) and in particular the impact of the increase in VAT again in 2018 and an assessment of what other possibilities exist in tax policy for addressing inequality and poverty. There is also a thoughtful and important chapter (by Pienaar, Cosser and Davids) on defining the minimum core content of social and economic rights, in particular proposing ‘a systematic and ix

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participatory investigation’ into the norms and standards required to facilitate the realisation of the social and economic rights entrenched in the Constitution. This is an excellent collection of essays containing detailed social and economic data as well as carefully reasoned argument. It left me with two thoughts. The first is that for all that has been done in the first 25 years of our democracy, and we should not overlook that much has been done, the twin challenges of inequality and poverty remain the great challenges of this democracy and we have not met them satisfactorily. Perhaps one reason for that is that we have not nurtured ethics as a core element of public service: whether an ethics of integrity in exercising public power, or an ethics of care in developing policies and implementing them. Perhaps this collection may revitalise the importance of ethics in public life. The second is that South Africa is fortunate indeed to have scholars such as those who have contributed to this volume. Our problems are indeed immense, but if we are to tackle them, the capacity to engage in robust and critical research to inform policy choices is essential. This collection is a welcome indication of that capacity. The HSRC and the editors are thus to be congratulated on a volume that will make an important contribution to our national debate. Kate O’Regan Cape Town 17 February 2021

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Introduction: A South African accounting of poverty and inequality

Since the launch of the first State of the Nation edition in 2003, this annual flagship publication has captured the attention of public intellectuals, scholars, policy-makers and media writers in South Africa and abroad. Taking the South African national agenda as its organising framework, each edition of State of the Nation provides an in-depth and independent analysis of the year under review. The publication stimulates contemporary debates on key issues in a significant way and has received wide critical acclaim as a reference source that shapes public policies, political actions and individual and collective decisions. The current volume of State of the Nation focuses on ethics and politics in South Africa’s struggle against poverty and inequality. As we write, Covid-19 is still unfolding and it is therefore difficult to predict what the long-term consequences of this pandemic will be. The same applies to the more recent enforcement of accountability within the state and in broader society. The contributions in this work seek to stimulate a rethinking and reimagining of our politics, by shifting the focus to a more ethical and caring way of life. This has become crucial given the harsh realities of poverty and inequality exposed by the pandemic and by the measures instituted to contain it, such as the national lockdown. The state’s focus on saving lives resulted in great harm to the economy – an indication of the ethical dilemma that the state faced and the difficult decisions that had to be made. As the chapters show, ethical issues preceded the pandemic and will go beyond it, touching the full fabric of our society. The first chapter, ‘An Ethico-Political Approach to Poverty and Inequality: Embodying Care and Corporeal Citizenship’, by Narnia Bohler-Muller, Vasu Reddy and Crain Soudien, provides a broad framework in which ethics and care are discussed from a philosophical and theoretical point of view. Using Hegel’s philosophy as a starting point, it is argued that ethics has a long tradition, but that its implementation has to be revisited in societies in transformation, and particularly in the modern state. The tension between individual and societal interests plays itself out in our society, as it did in earlier ones. Following Mark Knackstedt, the purpose of the ethical state, then, is to assist ‘the ethical individual [to see] the objectivity of the ethical order as an expression of [their] own subjectivity’ (1994: section IV). The development of an ethical and caring state, however, is an ongoing, iterative project. A critical resource in that project – although by no means the only one – is the contribution of the feminist community, with its emphasis on the relational and interdependent nature of society. Following Selma Sevenhuijsen, four values of ethical care are discussed: attentiveness, responsibility, competence and responsiveness (1998). xi

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Part 1, titled ‘Politics, Ethics and the State’, delves into the role of the state in tackling developmental issues. As mentioned in Chapter 1, discourse(s) on politics and the state can facilitate the unmasking and disclosure of certain problematic areas, while bringing to the fore more meaningful interventions – through equality and ethics – both scholarly and practical. This part explores ethical state concepts, with a focus on topics such as the electoral system, accountability, women and land, and leadership. In ‘Reconsidering South Africa’s Electoral System: What Are the Alternatives?’, Sithembile Mbete and Vasu Reddy analyse the debates around electoral reform in South Africa. Their perspective, underpinned by the 2003 report of the Electoral Task Team (ETT), chaired by Dr Frederik van Zyl Slabbert, is that the current system does not necessarily place power in the hands of the people, and they explore whether the introduction of a constituency-based system would be more beneficial to the populace. The discussion concludes with the proposition of a new social contract and a mixed multimember representative system that would yield better accountability and socioeconomic reform. ‘Thinking Ethically about Women, Power and Land in South Africa’, by Narnia BohlerMuller, Nokuthula Olorunju and Karabo Magagane, unpacks women’s involvement in land ownership in South Africa through ethical and feminist lenses, a necessary discussion in light of the highly contentious yet topical section 25 debate on the redistribution of land. The chapter traces the historical trends of land dispossession, the legislation and policy frameworks and the role of tradition and the courts. The chapter concludes by recommending that women’s voices in the land reform debate be heard, as the exclusion of their voices is unethical and perpetuates gender inequalities. Richard Calland and Mabel Nederlof Sithole reflect on the role of leadership and accountability in ‘Presidential Leadership and Accountability, from Mandela to Ramaphosa’. This chapter tracks the performance of South African presidents since 1994 and proposes a distinctive framework for the measurement of quality leadership and accountability by means of two indicators: constitutional fidelity and institution-building. Calland and Sithole conclude by highlighting the importance of a culture of public accountability, which has been sorely lacking over the past decade. Further, the challenges that Covid-19 has presented to Ramaphosa’s presidency constitute an important development and allow a clearer comparison to be drawn between his leadership style and those of his post-apartheid predecessors. Part 2, titled ‘The South African Political Economy’, examines contemporary challenges facing the South African political economy, namely socioeconomic rights, the effects of perceptions regarding corruption, the national minimum wage and progressive taxation. These important issues prompt us to consider how to effect real transformation in the South African economy in order to make it more equitable. The minimum wage and taxation are particularly salient topics, as they look to the heart of the South African labour market, which continues to produce and reproduce extreme levels of income inequality.  ‘A Normative Approach to the Minimum Core: Minimum Requirements for a Life of Dignity’, by Gary Pienaar, Michael Cosser and Yul Derek Davids, presents xii

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a unique investigation into the duty of the state in the promotion, realisation and implementation of basic socioeconomic rights through the creation of defined norms and standards (the ‘minimum core’). The authors argue for a concrete methodological approach to the minimum core and emphasise the need for a reconceptualised constitutional dialogue within the state. ‘Diminishing the Power of the X? The Electoral Effect of Corruption Perceptions’, by Benjamin J Roberts, Ngqapheli Mchunu, Steven L Gordon and Jarè Struwig, explores the growing lack of confidence in the government’s anti-corruption efforts and the effect(s) this has had on electoral outcomes, ethical political leadership and accountability. Data from the South African Social Attitudes Survey (SASAS) are used to arrive at a better understanding of the implications for the current presidency’s approach to developing a capable, ethical and developmental state. This discussion is relevant to the public debate around these developments both during and post Covid-19. The issue of minimum wages is generally viewed as an important instrument in support of economic justice, reducing both poverty and inequality. In ‘An Empirical Assessment of the National Minimum Wage in South Africa’, Haroon Bhorat, Ravi Kanbur and Benjamin Stanwix discuss the process leading up to the introduction of the minimum wage in 2018. They highlight some of the aspirations, risks and uncertainties associated with the adopted policy, based on existing research. In ‘Taxation, Inequality and a Progressive Economy’, Imraan Valodia and David Francis provide an overview of the most important developments in tax policy in South Africa in recent times. They use first-rate South African data on household expenditure to explore the impact of and policy trade-offs associated with the increase in value-added tax (VAT). Furthermore, they analyse issues of tax progressively in relation to its gender burden and explore the implications of tax policy for inequality more generally. Part 3, titled ‘South African Society’, deals with aspects of life in South Africa and the ethics of the socioeconomic context in which we live. The focus is on the rights of access to food, healthcare and education, all of which are necessary to attain the vision of the Constitution of the Republic of South Africa, 1996, the Preamble of which states that its purpose is ‘to improve the quality of life of all citizens and free the potential of each person’. As the Bill of Rights (chapter 2 of the Constitution) is the cornerstone of our democracy, it is important to adopt its values and utilise it as an ethical framework for the attainment of its purpose. This part commences with the important issue of the constitutional right to food, which has been brought into sharp relief during the Covid-19 pandemic. In ‘South African Food Politics: Human Rights, Security and Sovereignty’, Patrick Bond, Thobekile Zikhali and Thabani Mdlongwa highlight challenges related to developmental rights such as access to adequate food and water, the effects of climate change on food production, and corporate power over the food industry, in the wake of 25 years of democracy. Food insecurity was exacerbated by the Covid-19 lockdown, especially during Level 5, where the closure of the economy led to widespread hunger. The chapter reveals the stark reality of the inadequate realisation of basic rights despite existing legislative and policy frameworks, xiii

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and details the impact of food sovereignty advocates and social movements that have achieved some success in recent years. The chapter concludes with recommendations which probe the use of social movements to bring about lasting change. The extensive and at times marred history of the right to education in South Africa is addressed in the contribution by Crain Soudien, Andrea Juan and Jaqueline Harvey, titled ‘The Right to Education in South Africa: Policy Tensions and the Quest for Balance’. The authors explore education policy changes through a rights-based framework, the conceptualisation and implementation of the right to education, and the resultant tension between the rights of children, parents and teachers as stakeholders. The chapter proposes a critical analysis to determine whether a reconceptualisation of ‘quality education’ has become necessary. Again, this topic has not been left untouched by the Covid-19 pandemic – emotive debates on whether to open or close schools have highlighted the need to improve public school infrastructure to address inequality and to find new ways of educating children as we encounter the Fourth Industrial Revolution and the realities that have been exposed by Covid-19. In ‘Access to Healthcare: Life Esidimeni and the Vulnerability of the Mentally Ill’, by Ames Dhai, Jillian Gardner and Safia Mahomed, readers are exposed to the meaning of access to healthcare as a fundamental right through the Life Esidimeni case study. The authors interrogate the complex ethical, human rights and legal issues which emerged as a consequence of inadequate attention to mental health in this particular case. They conclude that society has an ethical inherency which stands against the abuse of power and the denigration of those who are vulnerable, marginalised and disadvantaged. This is evident as we consider the mental health consequences of living through a pandemic and a lockdown, which has substantially changed our ways of living. Part 4, titled ‘Wellbeing and Identity’, focuses on processes in life domains that impact on diverse social markers in reducing inequalities. The broad strands of insight here are concerned with the interplay of social problems and their relevance for personal and social identity and wellbeing. Identity and wellbeing are central to meaningful engagements that minimise social inequalities. Identities, as we have come to understand the concept, are never fixed and predetermined but instead dynamic and future-oriented, because the meanings of identities are always directed to some form of becoming, social inclusion and belonging. This part prioritises ideas that speak to and resonate with dimensions that signal resilience and social behaviour, two issues faced by social scientists as we navigate this moment in our history. In ‘The Pursuit of Inclusive Health Services: Inequalities and Intersectionality’, Mzikazi Nduna and Sibusiso Mkwananzi discuss factors such as race, gender, age, class differentials and place of residence as markers of better health, indicating that there is no single population group or identity factor that is entirely protective throughout the life course. The argument concludes by recommending that public health interventions aimed at improving health, wellbeing and wellness should take into consideration intersectionality and multiple levels of lived identities in relation

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to inequalities and poverty, as exposed by the national state of emergency imposed by the government during the Covid-19 pandemic. In ‘Anti-Immigrant Violence as Social Group Control Vigilantism? Understanding Attitudes, Behaviours and Solutions’, Steven L Gordon, Marie Wentzel and Johan Viljoen explore anti-immigrant sentiment in the country and attitudes towards vigilante violence. They consider how anti-immigrant hate crime in South Africa could be combated and the steps that could be implemented to minimise so-called native–immigrant conflict. The authors also propose that further research be carried out and proactive monitoring of anti-immigrant attitudes and behaviours on the part of citizens be engaged. During the Covid-19 lockdown, the issue of aid to ‘foreigners’ became particularly contentious in the distribution of food parcels to the most vulnerable communities and households, with legal intervention being required to protect and assist immigrants. Building on the previous part, the discussions of identity and wellbeing are further explored in Part 5, titled ‘Culture’, as these concepts are closely interrelated. While an appreciation for cultural processes is far from universal among social inequality researchers, cultural causes and consequences of inequality have strongly influenced thinking in this area. The term ‘culture’ may refer to ‘specific institutions of knowledge and creativity such as language, science, religion, film, and literature’ (Gusfield 2006: 43), which are of concern to scholars of inequality insofar as their creation, dissemination or use creates symbolic boundaries, obfuscates inequality or naturalises the status quo (Horkheimer & Adorno 1972; Perrucci & Wysong 2003). Culture is an idea, a concept and a material reality that has salience and power, yet it is intensely complex and contested, as there is no consensus as to what it is exactly. Culture is not merely the production of symbolic goods; it has much to do with the enactment of social relations entangled with materiality to demarcate and characterise human and social life in relation to the social imaginary – an imaginary that may have been changed irrevocably during 2020 through the mere fact of social distancing and the wearing of masks. ‘Cultures of Sexualities and Gender in Afrika’s Changing Nation’, by Zethu Matebeni, provides a map of contemporary same-sex marriages, shaped by the Civil Union Act (No. 17 of 2006) in post-apartheid South Africa, along a continuum of varied forms of engagements and relations among people of the same sex in Africa. Matebeni offers a critique of the way the Department of Home Affairs in South Africa implements marriage for same-sex couples. She makes the case for an ethics, within state functions, that is not limited by heterosexism but that rather promotes and values diversity, equality and – particularly – African women’s desires. Subeshini Moodley’s ‘Through the Lens of Post-Apartheid Filmmaking: Spaces of Poverty and Social Inequality in Yesterday, Jerusalema and District 9’ engages an analysis of the spatial representation of poverty and social disparity in films in the post-apartheid South African context (the mid- to late 2000s specifically). The chapter illustrates how discourses of gendered, economic and racial inequality are tied to both the negotiation of spaces in South Africa and the construction of those spaces in films. The three South African films under discussion interpret specific spaces in a South African context as

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both imprisoning and liberating. In doing so, these films highlight key themes related to poverty and social disparity, such as gendered oppression, disease, crime, xenophobia and racial discrimination, and ailing social structures and economies. The chapter concludes with an argument for how filmic representations of these issues are useful in establishing a critical understanding of context. Grace A Musila’s ‘Diarised Precarity and the Crisis of Informal Settlements’ focuses on how residents of informal settlements and their dwellings figure in South African social imaginaries and the insights such imaginaries offer into distributions of humanity, precarity and social justice in South African public life. Musila zeroes in on shack fires and their attendant tragedy, via recourse to what she terms ‘diarised precarity’, to frame and motivate the systemic acceptance of repetitive, preventable disasters as part of the annual calendar of socially engineered tragedies in South African public life – which has been partially disrupted by a pandemic of proportions not experienced before. She deduces that the situation produces the dual effects of diarised precarity and liberal interventions in the lives of the poor – interventions which, however, remain grounded in the maintenance of the status quo rather than offering long-term systemic solutions. Finally, in Part 6, ‘South Africa and the World’, poverty and inequality are viewed in a continental and global context, focusing on the challenge of building an ethical world order and social solidarity in the era of Covid-19. The rise of populism and conservative politics, expressed in ‘Trumpism’ and a return to nationalism as seen in Brexit, has challenged the foundation of a progressive world order. Thus, contemporary international politics play out in what could be seen as an age of increased uncertainty, which may result in increased tensions or bring about cooperation in an effort to deal with and eventually prevent a global crisis on the scale experienced in 2020. In ‘South Africa and the Global Economy’, Fuad Cassim questions the slow growth in the country’s economy, which has resulted in developmental objectives falling behind comparable emerging market economies. One of the critical keys to economic growth is capital investment; this points to the importance of the climate for investment, which depends on aspects such as good policies, regulations, sound institutions and good governance. South Africa’s poor economic growth – it is experiencing the longest downswing since 1945 – is the result of policy instability, policy incoherence and heightened uncertainty. Growth and structural reform have thus become the most critical issues facing the country. The chapter looks at the global and emerging markets context, with its trade wars, before it focuses on subSaharan Africa and South Africa’s economy. Lastly, the policy options available to deal with our dire economic situation are explored. Risks to domestic growth include slower growth in China, the instability of our electricity supply, ratings downgrades, industrial action in the mining sector and trade wars. ‘A Foreign Policy of Ubuntu? South African Foreign Policy Values and Priorities’, by Joleen Steyn-Kotze and Steven L Gordon, presents an overview of South Africa’s foreign policy under the four post-apartheid administrations and explores the idealist

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and human rights-based foreign policy outlook South Africa adopted in 2011. The chapter discusses findings on South Africans’ views of key foreign policy issues and their perceptions of South Africa’s soft power in setting and changing cultural norms towards building a peaceful global order. Finally, in ‘Is Pan-Africanism the Future?’, Francis Kornegay asks whether Africa’s future can be anything other than one based on reviving pan-Africanism. The chapter reviews the chequered history of pan-Africanism, as a tendency that originated in the New World African diaspora experience and that evolved into anticolonial African nationalist movements, thereby jeopardising the possibility of a united Africa. While this edition of State of the Nation builds on the analyses of poverty and inequality in the previous two volumes, it is unique in many respects, and perhaps even more so as we learn to live differently in a post-Covid-19 world. The global and national environments before the pandemic necessitated that the poverty and inequality gaps be narrowed; the starting point and focus of the 2016 and 2019 volumes was therefore mostly on economic growth, employment creation, socioeconomic rights and material wellbeing. Covid-19 taught us the limits of an economic approach, and emphasised the need to care for each other under circumstances that cannot easily be changed. At the time of writing this volume, an effective vaccine for Covid-19 became available but had not reached South Africans, and the suffering and the unravelling of the societal fabric continued. The traditional responses to disasters were not working anymore, both globally and in South Africa. What is required now is a new approach in social relationships, in which wellbeing is increasingly defined in terms of coping with challenges, overcoming desperation and taking the needs of the most vulnerable seriously. Together with this new awareness of care as a core element of the new society, accountability becomes a central focus of the state. While taking care was something that was avoided in the individualistic and almost predatory society that existed before the pandemic, the value of being human and part of a community and society has been brought to the fore by Covid-19. While economists and politicians struggled to regain lost ground, the social sciences and humanities rediscovered a ‘new normal’ in adaptation, sacrifice and mutual support. While the post-pandemic world may offer us a new normal, we can only hope that the regained ground of ethical care will ensure that this new normal will retain these values and not lose them again. References Gusfield JR (2006) Culture. Contexts 5(1): 43–44 Horkheimer M & Adorno T (1972) Dialectic of enlightenment. New York: Herder & Herder Knackstedt M (1994) Hegel’s theory of the state. In State and revolution: Hegel, Marx and Lenin. Accessed 20 February 2020, www.logomancer.com/state/chapter1.html Perrucci R & Wysong E (2003) The new class society: Goodbye American dream? Lanham: Rowman & Littlefield Sevenhuijsen S (1998) Citizenship and the ethics of care: Feminist considerations on justice, morality and politics. London: Routledge

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An ethico-political approach to poverty and inequality: Embodying care and corporeal citizenship Narnia Bohler-Muller, Vasu Reddy and Crain Soudien

An ethic of care is an approach to personal, social, moral, and political life that starts from the reality that all human beings need and receive care and give care to others. The care relationships among humans are part of what mark us as human beings. We are always interdependent beings. – Joan Tronto, 20091

In this chapter we argue for a normative rethinking of the idea of the state. Our argument is motivated by the need for a politics – in South African governance and management of public goods, resources and affordances – which is underpinned by ethical commitments. The urgency of the problem which poverty and inequality pose for the world, we argue, demands a demonstration of the highest ethical principles, values and practices we are capable of performing. In South Africa, right now, an approach underpinned by an ethical framework centred around the challenge of poverty and inequality is, we argue, our central imperative. The concern with ethics which we bring to this edition of State of the Nation was conceived well before the shock of the Covid-19 pandemic hit the world at the close of 2019. It is, however, extraordinarily relevant for the circumstances into which the virus has thrust the world and, particularly, South Africa. Covid-19 has changed a great deal about the way we live, interact and engage with one another and the state. Its reach has been immense and the pandemic has compelled us to think of new ways of being and doing. In South Africa, the focus on saving lives has resulted in much damage being wrought to the economy and the livelihoods of millions of South Africans. This in itself constitutes an ethical dilemma that was faced by the state, as arduous – perhaps impossible – choices had to be made. As we write, Covid-19 is still unfolding and it is therefore difficult to definitively predict the longterm consequences of this pandemic. But what does remain central are the human consequences that it has brought about. The contributions in this work seek to bring us to a sense of what these consequences are. They seek to stimulate the project of rethinking and reimagining our politics. They have in mind a more ethical and caring way of life, in response to the harsh realities of poverty and inequality that were exposed by the virus and aggravated by the measures adopted during the national lockdown. Despite the perception that ‘ethics’ and ‘politics’ are separate and distinctive domains, our argument aims to confirm that the boundary between ‘ethics’ and ‘politics’ is neither innocent nor transparent. We suggest that the distinction is artificial. In a 1

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simple prioritisation of ethics, the questions and problems of politics (which we view as the play of power) are often erased. Similarly, by foregrounding politics at the expense of ethics we relegate ethics to the status of an intellectual indulgence, subsisting in the domain of abstraction removed from the social, the public and the human. Rather, binaries carry within themselves limits. If, for example, we deploy the examples of ‘man’ versus ‘woman’ or ‘white’ versus ‘black’ in a poststructuralist sense, then it stands to reason that connotations of dominance and subordination make up the architecture and embedded character of binaries. In contrast to binary thinking, Michel Foucault highlighted the entanglement between politics and ethics, in which power does not foreclose ethics but provides a framework within which ethics becomes possible (Lynch 2016) and in which citizenship is strongly inflected (Beerbohm 2012). In our view, ethics is not to be simply interpreted as a set of pre-given, fixed, absolute principles based on Western liberal notions of human rights or ‘justice’. Rather, ethics becomes a site for and domain of struggle, contingent on agency. We thus opt for the ethico-political approach, informed by Kantian conceptions of duty (Kant 1964/1786). To take ethics first, the Kantian position is to say that you can be properly ethical only if your concern is to act according to your rational duty.2 Duty implies, therefore, a sense of moral obligation and commitment. This has come to the fore more than ever in state and personal responses to Covid-19. More specifically, ethics (matters of moral principles and values) usually also features more explicitly under conditions that elicit active resistance to oppression and othering. We go further to indicate that an ethico-political approach exposes the violence that is inflicted through oppression and marginalisation. In this context, we also emphasise that poverty and inequalities reappear even beyond practical interventions that emphasise meanings about our existence and being, as well as about our knowledge of things. The question is: How? A central way to attend to correctives in an ethico-political approach is by turning to an ethos of care for the (new) world in which we are located, a point Ella Myers embraces in her argument about cultivating care and the capaciousness in political spaces (2013). In essence, to ‘act’ is in several ways a call to duty, a performative gesture (Barad 2003), demanding also what Elisabeth Porter calls a ‘politics of passion’ in which it is possible to respond to human needs (2006). The concept of ‘care ethics’ therefore designates a well-established and vibrant tradition of ethical thought that offers an alternative to the more mainstream traditions of rights and justice.3 Kimberly Hutchings has made the case that a feminist ethics of care is most powerful when voiced as a claim about the nature of the world we inhabit, rather than a claim about what ought to be the case. In Hutchings’ view, such a world is one in which moral reality is embedded in relationships and practices of responsibility and recognition (2000: 123). Responsibility and recognition are central aspects in rethinking an ethical framework in the context of care: the former implies leadership, influence, culpability and dependability, while the latter promotes engagement with identification, acknowledgement, acceptance, recall

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and remembrance. Simply put, an ethics of care proceeds from a theory of the self as relational, because human interaction is located in a social world contingent on relationships, affiliation, complementarity and material connections. In this view, the self has no ‘separate, essential core but, rather, becomes a “self ” through relations with others’ (Hekman 1995: 73). In a more recent formulation, Joan Tronto reiterates that care and politics are ‘two worlds [that] are deeply intertwined, and even more so in a democracy (2015: 1). Only at the expense of our democracy do we underestimate their interdependence’. This implies that democracy and a democratic project should ideally strengthen, enlarge and energise the connection between care and politics. Virginia Held notes that the feminist conception of an ethics of care is only a few decades old and principally Northern-centric (2006).4 However, emerging work is evident in African contexts, combining insights of ubuntu and care.5 Conscious of the European origins of discourses of the state, we have to, in indigenising and giving a ‘Southern’ perspective to our discussion, acknowledge how significantly different historical realities have developed in polities outside of Europe. The idea of the state as a framework for the governance of social entities did not apply in precolonial Africa (and indeed in other parts of the world). The anthropologist Archie Mafeje famously challenged the idea that African societies formed socially in the same way as European ones did (1971). The implications of this for thinking about ethics in our governance systems in the South African context are great. They are immense, simply because the African past is not past nor complete. Ideals from the past persist into the present and the future. They have to, however, be rearranged and themselves shift and change. Ubuntu, as an element of these pasts, is a frequently deployed idea in the making of the current South African state. How it is engaged, however, remains under-articulated and under-theorised. The situation in which we find ourselves is, of course, a very short time in the history of human attempts to evaluate how we should live our lives and what we ought to do. It holds, however, much promise for (re)imagining the state (Held 2006: 5). At the core of an ethics of care, as Held explains, are five defining features, which can be summarised as follows: first, an ‘attenti[veness] to and meeting the needs of the particular others for whom we take responsibility’; second, enhancing our epistemological and ontological capacities to acknowledge each other’s emotional and relational capabilities; third, working critically with the idea that abstract reasoning is ipso facto superior to other forms of thinking; fourth, reconceptualising anew the distinction between the public and the private; and, finally, foregrounding the relationality of our subjectivities as opposed to privileging and idealising our individual needs and wants (2006: 10). Significant about these features is the acknowledgement of what one might describe as situated ontogenesis. Human subjects take, find and express their full humanness in complex engagements with each other through their reasoning capacities and their affective attributes – all of which are in constant interaction with the physical and structural world in which they find themselves. 3

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How is this relevant for thinking of and managing the modern state and citizenship? What significance does it hold for a South African state which has the responsibility of shepherding a new nation into being? How might a post-apartheid state distinguish itself from its predecessor – the apartheid state, the quintessential racial state in which, to use Covid-19 as a metaphor, the majority of citizens (black at that) could not breathe nor live as citizens and which regarded the other in fundamentally disrespectful and uncaring ways? While the ideas of care and ethics are not explicit subjects in South Africa’s two signature state-making documents, the Constitution of the Republic of South Africa, 1996, and the National Development Plan 2030 (NDP) (NPC 2012), they exert a heavy obligation. The Constitution’s founding provisions open with the following core ethos: ‘The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.’ Chapter 13 of the NDP commits the country to a new post-apartheid agenda: ‘In a society with deep social and economic divisions, neither social nor economic transformation is possible without a capable and developmental state … Critical interventions are required to build a state capable of realising the vision for 2030’ (NPC 2012: 408). In terms of realising that vision, in 2015 the then chair of the National Planning Commission (NPC), Minister Jeff Radebe, emphasised in an address to the University of South Africa (Unisa) that the promotion of good governance was central in fulfilling the aspirations of the NDP (Radebe 2015). His focus was on the ethical conduct of public servants. We suggest that more is called for in the context of South African statecraft, which has, in the current period, imprinted all over it the marks of predation and self-serving avarice. In other words, it is important that the state we build is not only developmental and capable, but also ethical and caring. For Miranda Fricker, our understandings of ‘rights’ – our entitlements as human beings – ‘call for a more comprehensive and diverse view of the person’ (2015: 75). At the core of her provocation is a view of the human which is not easily managed in ‘rights’ discussions; instead, it requires an even broader conception of corporeality and materiality in the ethics of care and its relation to the state. Central here is the idea of a person, a human subject, who is capable of and entitled to the full gamut of rights involved in both receiving and giving. What is the provocation in this? It accords to an individual or a community of people the entitlement to give, to ‘contribute to the pool of shared epistemic materials’ which are necessary for engaging the rich complexity of being human (Fricker 2015: 76). How do we proceed with our investigation in this chapter? We begin with a short review of the theory of the state. Our focus here is on one of the earliest expositions of the modern state: Georg Hegel’s Philosophy of Right (1952/1820). Drawing on South African theorist David Goldberg’s classic The Racial State (2002), the chapter then flows into a discussion of the state as a state of ‘projects’ and the need for uncovering the ways in which projects naturalise hegemony’s domains of power – class, gender, race, sexuality, ability, language, religion and a multiplicity of other 4

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forms of privilege. Next, the chapter considers ‘ethical caring’ and its implications for the state. In this scheme, an ethics of care, as a key message in this chapter, is also contingent on understanding the meaning of corporeality and the body in relation to the question of power, which we take up briefly. Finally, the concluding section addresses challenges that arise for the building of an ethical post-apartheid state and how these challenges are framed by various contributors in this edition of State of the Nation.

Approaches to the modern Most discussions of the modern state reference a lecture the sociologist Max Weber gave to a group of students in Munich, Germany, in 1919, in which he said that the state is a human community that successfully claims the monopoly of the legitimate use of physical force within a given territory … The state is considered the sole source of the ‘right’ to use violence. Hence, ‘politics’ … means striving to share power or striving to influence the distribution of power, either among states or among groups within a state.6 Weber thus defines the state as a political unit legally permitted to use force within a specified territory, but in his scheme the state should be defined, not in terms of its ends, but in terms of the specific means peculiar to it. The purpose of Weber’s lecture was not to address the question of ethics; it arose directly out of his focus on why politicians choose politics as a vocation. He suggested that there were two ways of making ‘politics one’s vocation’: Either one lives ‘for’ politics or one lives ‘off ’ politics … The rule, is rather, that man [sic] does both, at least in thought, and certainly also does both in practice … Either he enjoys the naked possession of the power he exerts, or he nourishes his inner balance and self-feeling by the consciousness that his life has meaning in the service of a ‘cause.’ In this internal sense, every sincere person who lives for a cause also lives off the cause.7 Ethics, Weber implied, almost inevitably gave way to self-interest as ‘the great majority [of politicians] … will in the long run “make their living” out of their “calling” in a material sense as well’.8 While Weber’s contribution has shaped a great deal of discussion about the ethics of the modern state, and usefully and pertinently concentrated our attention on the question of corruption, there is an older literature which provides important markers for how the objective of constructing the ethical state might be achieved. The key text in that literature is Hegel’s seminal work Philosophy of Right, first published in 1820. Hegel makes the extraordinary statement that ‘[t]he state is the actuality of the ethical Idea’ (1952/1820: 229). This statement has been criticised as a justification for 5

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totalitarianism and for imposing obedience to arbitrary authority; however, as Mark Knackstedt helpfully argues, simplistic readings misrecognise Hegel’s point about the role of modernity’s major institutions – the family, the community and the state – in developing modern democracies (1994). Hegel’s purpose was to show that these institutions, most notably the state, were and are not simply coercive instruments mobilised in service of the interests of hegemonic forces in society. To be sure, that is what can become of them. As Goldberg says, the state can easily be and has historically been lined up ‘either as instrumental to interests set outside itself (economically, popularly, legally) or as representing its own inherent interest as a uniform coherent entity’ (2002: 7). He shows in The Racial State how this is achieved – how representatives of the state can form a bureaucratic class, seemingly neutral, behind ‘self-represented’ histories that provide the intellectual alibis for state projects which include and exclude in racial, gendered and class terms. Goldberg’s analysis is important in that it supplements Weber’s critique in stronger sociological terms. But Hegel’s purpose was different. He was attempting to constitute for us not simply how the material politics of the state worked, but, critically, how institutions could serve interests beyond the particular, beyond the thoughts and visions of particular epochs. He introduces to the discussion the possibility of an encompassing and inclusive idea of the universal and the role of the state in nurturing possibilities of universalism. How does he do this? As any reflection on Hegel will quickly reveal, his writing is not easily made sense of. Hegel has to be read widely and deeply. There are, as a result, many interpretations of what his purpose is. Knackstedt’s reading is helpful, as he makes clear the centrality of ethics in Hegel’s thinking. In that thinking, the task of building an ethical society is given to the state which, while being dependent on, being contiguous with and building on the institutions of the family and civil society, also surpasses those institutions in many complex ways (1994). Those institutions are not capable of ensuring the legitimacy and durability of the ethical project – the project of cultivating an ethical life. Families, for obvious reasons, dissolve and sometimes dissipate. Civil society fosters solidarities that are interest-based and sectional. The state alone, Hegel argues, has the capacity to build on that which exists in potential in the family and civil society (1952/1820: 233). Its advantage over the family and civil society is that it helps individual human subjects to imagine and see the possibilities of the universal in and out of their particularities and that it puts in place the normative orders which facilitate the reproduction of the idea of the universal. The role of the state, as Knackstedt motivates, is to facilitate the historical process ‘through education, legislation, and community life … in which individual self-interested men come to grasp the universal through their particularity and, in so doing, become truly free’ (1994: section II). It is here that Goldberg’s cautions must be held close to our analysis. Hegel’s historical processes are susceptible to failure. They have difficulty responding to

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individual and collective self-interests. They also, to return to the question of our complex South African pasts and issues such as ubuntu, struggle to assimilate, digest and, in more difficult ways, work critically with ideas that do not easily fit in with the logic of a European conception of individualism and solidarity. This does not, however, invalidate or take anything away from the insights which come from Hegel. At the core of Hegel’s argument is the injunction to work with our actual realities and not to deny them. They are essential co-determinants of what an ethical life could be. We have to, therefore, grapple with our disjunctive realities – in all their complexities. As Knackstedt explains, these realities hold the dangers of the individual separating their own needs from those of the wider society; the purpose of the ethical state, however, is to assist ‘the ethical individual [to see] the objectivity of the ethical order as an expression of his own subjectivity’ (1994: section IV). Rational objectivity is worked towards when the individual and the collective come to understand that their own interests are best understood and attended to in constant and repeated juxtaposition with those of others. Self-consciousness is the objective (and indeed the practical intervention) required of the ethical state. Knackstedt says: Ethical Life has as its prerequisite the particular man who wills the universal, such that he finds freedom, rather than a fetter, in the prevailing set of social norms … The relation of human beings to the ethical order is one of identity. Of course, the laws and institutions of the ethical order are binding on the will of the individual and, as a willing being, the individual stands apart from them. But the subsequent ‘bond of duty’ appears restrictive to an individual only to the extent that he subscribes to the norms of abstract right or morality. The ethical community is a fetter to the individual if, and only if, his actions are egotistic or degenerately moral. (1994: section IV) It is here, in the doing, of course, that the Hegelian ideal meets its most critical difficulties. Those difficulties are practical but also, critically, conceptual. They arise in Hegel’s abstraction of the idea of the universal. The state is for him the embodiment ‘of ethical existence which allows human beings to acquire universal consciousness’. Hegel suggests, and we should support this idea, that the state is not a ‘glorified gendarme’: ‘it is what allows human beings to take their place in the historical development of the human mind, and, hence, makes them capable of ethical living’ (Knackstedt 1994: section V). Hegel also, significantly, acknowledges the right of the individual to take issue with and contest the normative order. In this he distinguishes his position from Platonic and Aristotelian ideas of the ideal state.9 In working critically with Hegel, however, the question that arises is how individuals and communities manage the process of ‘taking their place’. How othered individuals and othered communities of people ‘take their place’ – however they identify in the socially constructed categories they inhabit or to which they are assigned (race, sexual orientation, class, gender or whatever) – is what is most problematic, we suggest. Impeding this ‘taking place’ are Goldberg’s ‘state projects’ – fronts for the

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interests of groups and individuals. By ‘state projects’ Goldberg refers to the specific ways in which the state constitutes itself in and through a range of powers through which it is able to include and exclude (2002: 8–9). The apartheid state, for example, constituted specific projects which used categorisation to order society in racially ordered terms. However, much less well understood are the dynamics of reason. These dynamics provide the content for the processes through which universalisms are articulated. In their expressions of dominance – ‘the march of God in the world’, in Hegel’s famous words (1952/1820: 258) – they do not merely tolerate the place of the other in the historical development of the so-called universal mind but actively, in Fricker’s terms, seek to ‘canvas … , pool … and genuinely engage’ with the other (2015: 77). How do we create a politics of knowledge and a practice of sociability which allow the unfettered taking of place? How does one cultivate an ethics of care through the medium of universalisms which are constituted around subjectivities of dominance?

Theorising the caring state As the preceding overview makes clear, the discussion of an ethics of care, at this stage, still has limitations and lacunae when brought into discussions about poverty and inequality, precisely because care is a transformative way to understand ethics. In our view, ethical responsibility is a duty and a set of practices designed to alter, modify and in fact repair dimensions of inequality. Its development, however, is an ongoing, iterative project which could learn many lessons from the scholarship on gender and feminism.10 Such studies sketch out the ways in which a feminist ethic of care may offer an alternative, and potentially more transformative, way of thinking about poverty and inequality – and, of course, power. A critical resource is the contribution of the feminist community, particularly the works of the moral philosophers Nel Noddings and Carol Gilligan, but also the works of others who have attempted to crystallise ideas and meanings about care as a corporeal relation.11 With regard to corporeal relations, we seek to develop the discussion in this section to emphasise that poverty and inequality are a nexus of concern in systems of care. They perpetuate, if not deepen, existing social inequalities in their embodied effect.12 Noddings anchored caring in her ground-breaking text Caring: A Feminine Approach to Ethics and Moral Education, in which she delineates caring in terms of two forms: natural and ethical (1984). ‘Natural caring’ is sympathetic and develops primarily out of mother–child relationships. Although Noddings initially considered caring as distinctively feminine, she acknowledges in her later work that this does not mean that men are incapable of thinking in such terms, and that they should be encouraged to do so (2013). Noddings, like Gilligan, advocates for equal rights for women as caregivers – for caring for both families and other human beings (2013). For Gilligan, the ethics of care sees people not as ‘standing alone’, but as gaining their selfhood through their relations with others (1993: 147). Noddings formulated the terms ‘the one-caring’ and ‘the cared-for’ as role-players in the caring relationship (1984: 5). In the mother–child relationship, it is clear that the mother is ‘the one8

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caring’ for or the caregiver to the child, whereas ‘the cared-for’ or the person being cared for is the child. Thus, Noddings sees natural caring occurring within circles of intimates and friends who are immersed in one another. Unlike natural caring, ‘ethical caring’ requires people to act with an attitude of, a sensitivity to and a duty of caring for others (Noddings 1984: 128). Because ethical caring is regarded as a particular and situational morality, we may care about strangers in the sense of maintaining ‘an internal state of readiness to try to care for whoever crosses our path’ (Noddings 1984: 18). In this way, caring should be known to all and exercised by all, and also extended to plants, animals and ideas, based on the experience of caring received from home, school or elsewhere (Noddings 1984: 174–175).13 Noddings classifies this relationship as an action (signalling steps, measures, activities, gestures and effort) in which people draw themselves into the particular world of the other; caring demands that one move out of individuality and into relation with others. The essence of being human is being relational, connected and interdependent, which troubles the gender binaries and patriarchal systems of power which impede and obstruct the development of empathy and compassion and the repair of relationships. The ethical dimensions of care are not simply an intellectual issue; fundamentally, they concern the relationships between and among people as citizens and between people and the state, relationships which ought to be enabled and sustained in changing contexts. Noddings’ ethical relationship of care is therefore distinct from the more direct natural caring. In terms of the latter, an individual may care only for particular others close to the carer, and each of these individuals must be treated particularly, without adherence to general rules or principles. In many senses this is insular, as the caring is reliant on the fact that the cared-for is considered to belong, and not be an outsider or different – or, for that matter, an ‘Other’. Nel Noddings and Michael Slote acknowledge that caring is innate, deep-rooted and experienced; however, they argue that direct caring for other people is morally less advanced than a ‘conscientious concern for principles of justice and human rights’ (2003: 355). The assumption here is that it is only when two forms of caring – sympathetic (natural) and empathetic (ethical) caring – are aligned and viewed as a duality that it becomes possible to cultivate autonomy and mutual respect between the carer and the cared-for. Slote, for his part, supports empathetic caring that respects the autonomy of the cared-for. In his view, a morality of empathetic caring calls for ‘respect [for] other people’s autonomy and not just or simply [being] concerned with their welfare’. To put it plainly, the cared-for is autonomous in their own right and does not have to merely respond to the carer; instead, the cared-for engages with the carer as an equal (Slote 2007: 148). Therefore, according to Slote, autonomy as a pertinent element of empathetic caring should be understood as an issue that is dependent on context and its relations. The roles of empathetic caring, which is casually, contextually and constitutively relational, are foregrounded in the kind of morality that conceives

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of caring for others (2007: 74). Central to this caring relation is the notion that all people are relational and rational beings – hence the need for people to think critically when establishing and proposing what is good. Slote thus argues that ‘we owe people respect on the basis of their autonomy [or their moral worth or dignity] as rational beings’ (2007: 74). Slote challenges sympathetic and non-autonomous forms of caring and offers an extension to a mutually respectful form of caring that considers the agency of the cared-for (2007: 148). What seems to be developing here is the idea that empathetic caring has much to do with the idea of listening with patience, dignity and openness to the voice of the other (and this transcends the pure masculine versus feminine binary in the patriarchal script). For instance, Carol Gilligan and Naomi Snider argue that because empathy and mutual understanding impede the division of people into higher and lower, our capacity for relationship and repair has to be compromised or stunted to set in place or maintain an order of living that splits humans into the superior and the inferior, the touchables and the untouchables – whether on the basis of race, gender, class, caste, religion, sexuality, you name it – an order where some voices are amplified and find resonance, whereas others do not, as patriarchy privileges the voice of the father. (2017: 174) At the core, then, a feminist care ethics confronts, disturbs and challenges the binary between ‘relationships’, which provides the possibility of resilience, thereby countering the problem of poverty and inequality. In the same manner, Rachel Shanyanana’s view is that the integration of sympathetic and emphatic caring would lead to mutual respect between the carer and the caredfor (2014). It would also assist the cared-for to develop and grow intellectually, without fear of speaking their mind about any issue. This ‘amalgamated’ approach constitutes a shift, in that the carer identifies the needs of the cared-for but also creates enabling conditions for them to engage autonomously, even to the extent of questioning the form of caring provided and received (Shanyanana 2014: 141). In order to (re)conceptualise the notion of an ethics of care, Shanyanana endorses Slote’s idea of empathetic caring, according to which the relationship between carer and cared-for is considered as mutually respectful, because both carer and cared-for have the autonomy to treat one another justly – this view promotes what could also be understood as ‘care reciprocity’. Criticisms of the notion of an ethics of care include that it is primarily within the private space (interpersonal relationships), with no application in public and/ or political spaces, and that its very nature bears no relation to ideas of justice. However, a reconceived and reimagined ethics of care, as described above, challenges dichotomous conceptions of the social, economic, political, environmental – of the public and private. Conceptions of the ‘private’ and the ‘public’ have a direct bearing on the epistemological and ontological aspects in this argument. Our view is that the divisions between the private and public are arbitrary and ambiguous, as these are 10

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fluid and dynamic domains; they are mutually entangled. The arbitrariness of the boundaries between the public and private domains is often brought into stark relief in relation to ethics,14 politics15 and gender.16 The problem of poverty and inequality, we maintain, is far from a private matter; rather, it is directly contingent on the public and connected to time, place and history.17 More specifically, the categories slide into and displace each other, as Gayatri Spivak motivated some time ago: For if the fabric of the so-called public sector is woven of the so-called private, the definition of the private is marked by a public potential, since it is the weave, or texture, of public activity. The opposition is thus not merely reversed; it is displaced. (1987: 103) There is, in other words, an ontological, epistemological and affective purpose to deconstructing the public and the private in the production of meaning, in which ‘we produce the official ideology, the structure of possibility of a knowledge whose effect is that very structure’ (Spivak 1987: 108). For the purposes of this argument, the private and the public disclose a range of possibilities (and contradictions) for thinking about the ethico-political dimensions of care and a caring state: the seen/ unseen, the known/unknown, secrecy/disclosure, knowledge/ignorance, active/ passive, innocence/initiation, and so on. An ethics of care therefore challenges individuals to think differently about the relations between the public and private spheres and to consider an alternative approach to reaching the same goals (Greenswag 2016). Public policy decisions affect private lives; collective decisions taken privately affect the public sphere. One example is the contentious issue of the amendment of section 25 of the Constitution to allow for land redistribution: any policy decisions taken will ultimately affect the role of women farmers; however, should women farmers – who care about each other’s wellbeing – collectively decide to make their voices heard, they could influence the approach to and outcome of that policy decision. In the words of Held: If we understand care as an important value and framework of interpretation for government as well as for the sphere of the personal, we will approach many of the issues involved in the relation between government and the economy differently from those for whom the government should be only the protector of rights or the maximiser of preference satisfaction. We can see how government should foster caring connections between persons and put limits on the markets that undermine them. The ethics of care provides grounds for arguing that we should care about one another as fellow members of communities, including gradually of the global community on which the future health of our mutual environments depends. (2006: 119) Selma Sevenhuijsen’s views delve even more deeply into the notion of caring ethics and a democratic state (2000, 2003). She states that ‘[r]elationality and

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interdependence are core concepts in the ethic of care’ (2003: 183) and that ‘[c]aring should be integrated in the fullest possible manner in any vision of social life and social policies’ (2000: 15). She continues by stating that ‘social policies that acknowledge the value of care as a daily practice in everybody’s lives’ should be enacted (2000: 20). Essentially, central to a democratic society is giving and receiving care – individuals need caring relationships not only with each other but with the state. A strong emphasis on interdependence and the formulation of ethical social policies is based on shared (caring) social responsibility.18 From a ‘Rawls-esque’ perspective – which imposes the idea of a morally and socially just system – one begins to appreciate the textures and nuances that should exist in a society that engenders and practises empathetic caring (Rawls 1971). This is because decision-makers/the state (the carer) should ideally make decisions that benefit not only the few; rather, decisions made should uphold the bare minimum of social, economic and cultural rights for all people (the cared-for). The consequences of this would be a reciprocity which exhibits mutual respect between citizen and state. Therefore, in a utopian world, an ethical state would emphasise the ideals of a democratic, socially just and caring architecture in the system of relations between citizens and the state. It is from this position that we proceed to the looking glass of the present-day practicalities of an ethical state. Over time, the centrality of ethics in democratic governance has diminished on a global scale – there has been a noticeable shift in the tides (Gutmann & Thompson 2005; Jacobsen et al. 2016). Stakeholders (politicians, civil society, policy-makers and scholars) have begun to explore how these shifts are creating ripple effects socially, culturally, economically, environmentally and politically. There is an intense scrutiny of how international governments are translating promises into action, and whether states are paying attention to the voices of ordinary people. As indicated earlier, in an ethics of care the question of listening attentively (with empathy) matters for active interventions in the domain of poverty and inequalities. This is also true in light of the multitude of national, regional, continental and global legal instruments which currently exist. Critical examples include state-specific constitutions and bills of rights; the 17 global Sustainable Development Goals (SDGs) of the UN’S 2030 Agenda for Sustainable Development; Agenda 2063 of the African Union (AU); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of Persons with Disabilities (CRPD), to name a few. These pivotal instruments emphasise the importance of social justice through sustainable social, cultural, economic and environmental development, and inherent in them is an ethical lens. Additionally, social justice has been conceptualised through varied approaches and versions, with some scholars drawing distinctions between general justice and distributive justice (Mikula 2001; Weigert 2015) and between approaches such as the 12

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feminist, conservative or liberal approach. Stephen Bales provides the following apt description of social justice: Social justice thought and action weaves itself throughout world history, working as a counterpoint to humankind’s unfortunate propensities for greed, power, and physical and economic violence … It has originated organically as a reaction to exploitation and oppression … It never separates, however, from the context of history, cultural and human social relations. (2018: 4) Despite the ambiguity that lurks in the shadows of the concept of ‘social justice’, what remains steadfast and beneficial is the close thematic ties maintained between social justice, fairness, equality and human rights (UN DESA 2006). Social justice remains a principles-based ideology which exceeds the limits of materialistic allotment (Bales 2018: 6). It can be argued that it inherently adopts an ethical approach to the realignment of societal inequalities. Thus, a caring, ethical approach is consistent with a socially, economically, culturally and environmentally just society. In keeping with the theme of this book – and borrowing from Slote’s theory of empathetic caring, which includes respect for the autonomy of the cared-for – one cannot underemphasise the notion of an ethics of care from a South African perspective. The Constitution advances the importance of democracy and social justice, as contained in the Preamble, which states: Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; lay the foundation for a democratic and open society in which the government is based on the will of the people and every citizen is equally protected by law. The Constitution, as a coherent and potent document, can be understood as an ethical, progressive and transformative document. At face value, the Bill of Rights is one example of envisioned, empathetic care in society, as it advocates an ideal, socially responsible society. However, in and of themselves human rights are not an effective protection against oppression. In a recent report by Statistics South Africa (Stats SA), South Africa is listed as one of the most unequal countries in the world, with a per-capita expenditure Gini coefficient of 0.65 in 2015 (Stats SA 2019: 5). Inequality remains pervasive today, in South Africa’s highly regulated yet highly racialised labour market. Stats SA has found that mean real earnings between 2011 and 2015 amongst employed black Africans was R6 899 (real earnings) per month. For coloureds and Indians/Asians, the corresponding figures are R9 339 and R14 235 per month, respectively. Amongst whites, it was R24 646 per month, or more than three times as high as it was amongst black Africans. (2019: 61–62)

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The employment rates confirm the persistence of the legacies of the apartheid regime, with an unemployment rate of 31% for black Africans, compared to a rate of 6.7% for white people, in 2017 (Stats SA 2019: 59). These reflections reveal the stark reality and provide measurable indicators of the effects of inequality in South Africa. This effectively becomes the focal point for economic, social and environmental stagnation. What South Africa is currently faced with is a culture of preferential ethics, inherited from a divisive apartheid regime, which has manifested as varying forms of social injustice and careless (rather than care-centred) politics. Citizens find themselves far removed from relevant conversations, which leads to a widening of the chasm between the rich and the poor; gender and racial inequalities stubbornly persist; the brazen looting of state resources, meant to help the disenfranchised, continues virtually unabated; and there is a general lack of transparent and accountable governance. As Sevenhuijsen maintains, ‘democratic society thrives on public deliberation: the open formation of public opinion and public debate’; therefore, arising prominently is the need for a reframed normative framework and ‘responsive policymaking’ (2003: 193). Some useful considerations are: • the inclusion of an ethical framework and how this can influence the capacity of the state to meet constitutional commitments; • an exploration of how policy can listen, respond and react to the needs of the public within certain boundaries; • an ethical approach to land issues; • the importance of a ‘minimum core’ approach as a mechanism for social justice; • the establishment of practical checks and balances to ensure social justice; • the ethics involved in issues of healthcare, gender, elections, education, economics, wellbeing and social cohesion – which would all work together to develop a better-performing democratic state. Sevenhuijsen (2003) identified the following as essential to a reconceptualisation of the state and the relationship between state and citizen: • The value of attentiveness: The needs and particularities of individuals should receive attention and be heard. • The value of responsibility: We need to acknowledge that we all have endless responsibilities when faced with the suffering of the Other. • The value of competence: People should be provided with the opportunity to optimally develop their own capabilities and the capabilities of others within their community, and to live lives of wellbeing. • The value of responsiveness: We should at all times be responsive to the voices of others and, in addition, acknowledge care as an everyday practice of human life. As motivated in previous editions of State of the Nation, poverty is more easily identified than inequality, and the same holds true when viewing the situation through an ethical lens.19 Granted, much like social justice, a methodological approach to ethics is somewhat uncharted territory. However, the creation of

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platforms for robust discussions is a move in the right direction for the amplification of an ethical approach in practice. Emphasis should be placed on utilising the expertise and skills of those who have succeeded in building an ethical culture, whether in the public or private sector(s). An attitude of and dedication to care and social responsibility is not and should not be limited to individual relationships; it cuts across sectoral, individual and collective relationships, citizen relationships, governmental relationships and international relations. It encompasses the ability to learn from the mistakes and successes of others in order to create a caring, productive society. Additionally, it needs to be emphasised that transparency, accountability and approachability (care) – from the top down and laterally – should be the mechanisms through which the realisation of an ethical state is attained. The hope is that highlighting the current blurred lens of unethical practices will inspire the necessary introspection and result in changes that would see empathetic care become ingrained in society in a manner that permeates the economic, social, cultural and environmental spheres. Policy-makers need to proactively listen to citizens and demonstrate transparent and accountable behaviour to our diverse publics. Decisions must account for the diversity of voices, thereby rejecting the normalisation of preferential ethics. When decision-making is based on the values enshrined in the Constitution – in which an ethical stance is inherent – then we will begin to realise the practical effects of a just and caring society. As Noddings and Slote reiterate, we will begin to notice people putting improved principles into practice (2003). Carol Gilligan and Jane Attanucci also offer the following (re)formulation of the care-and-justice debate: A justice perspective draws attention to problems of inequality and oppression and holds up an ideal of reciprocal rights and equal respect for individuals. A care perspective draws attention to problems of detachment or abandonment and holds up an ideal of attention and response to need. (1988: 224) Care and justice, in other words, bring to the fore dimensions of responsibilities and a focus on particular responsibilities. Gilligan articulates this alignment in the following way: ‘From a justice perspective, the self as moral agent stands as a figure against a ground of social relationships, judging the conflicting claims of self and others against a standard of equality or equal respect (the Categorical Imperative, the Golden Rule)’ (1987: 23). We now turn briefly to a few ideas that confirm why corporeality in relation to an ethics of care remains important to the way we understand our humanness to be seen and heard by others. Bodies are equally embedded in the deeply divisive effects of environments that create exclusions and minimise equality (Gatens 1996; Grosz 1994, 1995).

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Corporeality and embodied politics We have maintained throughout this argument that poverty and inequalities expose the bodies of citizens to great vulnerabilities in material ways. Teena Gabrielson and Katelyn Parady, writing about the relevance of ‘green citizenship’, motivate that by envisioning bodies as porous, plural and connected, a corporeal approach also acknowledges the centrality of vulnerability to the human experience and opens up possibilities for challenging the traditional conceptions of autonomy and agency that view citizens (men) as discrete individuals capable of controlling or mastering the physical world through reflective action. (2010: 380) Bodies, in their view, are therefore unequal and constructed by inequalities, which place constraints on individual freedom. Gabrielson and Parady are explicit in their description of how this functions: Layering the social and natural contexts in which humans are embedded reveals the uneven and unequal exposure of human bodies to … toxics [sic], pathogens, natural disasters, and climate and other environmental stressors. It also reveals the inequalities that restrict many of the most vulnerable from accessing resources that would enable them to better cope with the conditions they face. (2010: 384) In other words, bodies are inextricably compromised by their location in physical environments and hierarchies that render them constrained by biopower and, by extension, exposed to the hazards of poverty and inequalities. Our motivation of a biopolitical perspective seeks to facilitate opportunities to unmask, disclose and recognise more meaningful interventions – both scholarly and practical – to counter the dynamics of inequalities and poverty. Materiality is visible and palpable, and where the presence of poverty and inequalities is most apparent, it is usually and often circumscribed on bodies. It is for these reasons that a care ethic should ideally also account for the broader correctives that counter poverty and inequalities by accounting for its material dimensions. Nick Lee and Johanna Motzkau highlight that governments have long been concerned with biopolitics, particularly where the preservation of life and the governance of the wealth, health and happiness of the population have become primary concerns (2011). Our hypothesis is that the state in particular (and the various organs of the state apparatus) often claims to know the body politic, and by extension the ‘bodies’ of its citizens, because state responses, as we have maintained, are varied and fraught with tension.20 The state is an ethical entity and is often focused on intervening in order to correct human action and human life. Marxian strands of materialism have long had a presence in this field. New materialist approaches that recognise an interconnected agency in the body (particularly inflected by gender and feminisms21) are increasingly interrogating the social and the political not through the lens of economic conditions but with a view 16

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to the experiences and interactions of bodies. The latter, in materialist and Marxian terms, are in effect the product of labour, as Mark Bahnisch motivates: ‘[L]abor power, the power of the body, is central to the reproduction and accumulation of capital’ (2000: 64). From another sociological perspective, Pierre Bourdieu’s concepts of habitus and symbolic interactionism view the body as symbol (1990).22 The idea of an embodied habitus is also, in Beverley Skeggs’ terms, ‘a statement of social entitlement’ that reproduces class inequalities in, on and through bodies and that provides the impetus for conflict among classes (2004: 22). The needs, desires and expectations of ‘bodies’ (citizens and the state) have much to do with the source of and potential for human action. If, as we have maintained, care is not simply a theoretical proposition but a set of ethical practices, then it stands to reason that the corporeal is an instrument for motivating human action. In fact, the corporeal is a responsibility of reciprocity, that hospitality of catering for the overall good of the people. By this we mean that the body, in its configuration to the dynamics of care, has much to offer in instigating agency. In fact, the body, in its corporeal multifacetedness, demonstrates agentic capabilities and capacities that are distributed through individual and collective agency. We theorise that agency is a function of bodies; therefore, the correctives to poverty and inequalities manifest as a promise for a democratic politics that intervenes in ethico-politically caring ways to care for the needs of the body. Our ideas speak in several ways to and align with what Rosalyn Diprose proposes as an understanding of ethics that emerges from an openness and generosity towards the other – a form of hospitality – in which the other person is given priority over the self as one is called to a level of responsibility to others (2002).23 This type of ethics originates from an affective experience that ‘constitutes social relations … and communal existence’ (Diprose 2002: 5). In Corporeal Generosity, Diprose’s perspectives are mobilised to articulate an ethics and politics based on an ontology of giving (2002).24 Her notion of a corporeal ethics is formulated in terms of embodied experience. Diprose maintains that ‘social relations are subject to calculation and expectation of return in terms of values that favour the bodies that already dominate the sociopolitical sphere’ (2002: 171). She also suggests that there can be no ‘particular program of political practice that could better regulate unconditional generosity’ (2002: 186) and she generates a perspective on politics that would resist ‘those discourses that totalize and normalize bodies, that hide their own morality … behind claims to objectivity and detachment’ (2002: 194). Our assessment of Diprose’s views confirms that they provide a counterpoint to existing discussions of poverty and inequality by focusing on an ethics that resists the establishment of dominant norms and values aligned purely to policy and praxis. Turning to bodies, Nicola Smith and Donna Lee indicate that bodies are understood as sites upon which the hierarchies of global capitalism are inscribed, imprinted, produced and performed, so 17

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that embodied identities, experiences and practices are viewed as both produced by, and productive of, broader economic and political processes. Seen in these terms, the body can no longer simply be relegated to the ‘private’ and intimate sphere, for instead it becomes deeply implicated in questions of global economic and social justice. (2015: 65–66) In other words, the visceral and affective potentials that are intrinsic to embodied life are wholly connected to the material dimensions of inequalities.

Conclusions Profound socioeconomic transformations within the last few decades have resulted in multilayered inequalities and a sense of insecurity, resulting in a shared feeling of precariousness among South Africans – and now people across the world who are facing the same fears and challenges. Throughout this argument, we have pursued perspectives oriented towards a corporeal responsibility regarding inequalities and poverty, demanding greater intervention that crystallises with particular intensity within an ethics of care. Our view suggests that epistemological, ontological and affective interventions in countering poverty and equality reside in acts of strategic mediation that curb, counter and contain the challenges. Inequalities and poverty are visible – now more than ever – and operate as markers that are impossible to fully eradicate. They require a multipronged approach. For one, care as a disposition, as motivated, is represented and constructed in multiple and diverse relational contexts that structure needs, desires and relations of power. We thus deduce that the nature of care responses helps us to find correctives to social problems. In our view, relations of care are complex and deeply contested and may not always be inherently positive. However, part of the challenge of a care ethos (which we have formulated as a responsibility in the intertwined relations between the state, its actors/agents and citizens) is to consider opportunities and challenges relating to the conditions under which relations can, and often do, become relations of domination, oppression, injustice, inequality or paternalism. These tendencies are what we wish to counter with regard to poverty and inequalities. In a different way, this chapter prioritised an ontological shift in arguments about the poverty–inequalities nexus: a foregrounding of the body politic and the materiality of life, informed by a feminist ethics of care. We motivated that bodies matter and are shaped by a corporeal citizenship (an embodying citizenship in a democratic postapartheid state). This confirms human embeddedness in social contexts, entangled with questions of social justice as well as variables across racial, cultural, sexual and gender boundaries that mark bodies. This corporeality is to be reimagined as bodies are separated and faces masked as a result of the Covid-19 pandemic. We have motivated that inequalities and poverty live and thrive in bodies. Context, relationality and care in an ethico-political sense matter to the particularities of

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social location, historical background, structural conditions and relationships between relevant moral actors. We are all caught up in these configurations of power, which require of us deliberate and concerted efforts if we are to combat and counter inequalities and poverty and improve the state of the nation. It is unfinished business as we write, more so as we continue to face the physical, mental, social, economic and political fall-out of Covid-19. Talk of the ‘new normal’ is commonplace, but we remain unsure about what this means for humankind as we simultaneously encounter the ever-worsening consequences of the climate crisis and the uncertainties – and necessities – of the Fourth Industrial Revolution. To extend the disease and illness metaphor, like the current wave of Covid-19, poverty and inequalities are persistent infections requiring remedying, cure and deep care. The effects of poverty and inequality are like a respiratory infection that impacts on humans in severe ways, making it difficult to breathe and, ultimately, wounding and even killing us. In our view, an ethics of poverty and inequality remains an incomplete project in the state of the nation; however, it is certainly achievable through more concerted efforts that prioritise an ethics of care, something which is needed now more than ever. Notes 1 Tronto J, Interview, Ethics of Care, 4 August 2009. Accessed 31 July 2020, https://ethicsofcare.org/joan-tronto/ 2 See also Singer (1993, 2015) on ethics and Barry (1995) on politics. 3 See, for example, Greene (2007), Hamington and Miller (2006), Hankivsky (2004), Razavi (2012) and Razavi and Staab (2012). 4 See, for example, England (2005), Engster (2007), Lawson (2007), Myers (2013), Phillips (2007), Shilling (2003), Smith and Lee (2015), Tronto (1993) and Van Staveren (2005). 5 See, for example, Bohler-Muller (2007), Haegert (2000), Reddy et al. (2014) and Waghid and Smeyers (2012). 6 Ebeling R, Max Weber on politics as vocation, Capitalism Magazine, 28 October 2019. Accessed 20 February 2020, https://www.capitalismmagazine.com/2019/10/max-weber-onpolitics-as-a-vocation 7 Ebeling R, Max Weber on politics as vocation, Capitalism Magazine, 28 October 2019. Accessed 20 February 2020, https://www.capitalismmagazine.com/2019/10/max-weber-onpolitics-as-a-vocation 8 Ebeling R, Max Weber on politics as vocation, Capitalism Magazine, 28 October 2019. Accessed 20 February 2020, https://www.capitalismmagazine.com/2019/10/max-weber-onpolitics-as-a-vocation 9 In broad terms, Plato believed that the object of knowledge is universal. He believed that the ideal state is the only natural form of polis (state). He believed that an ideal state exists when each person performs what s/he is naturally suitable for in guaranteeing work. Aristotle, on the other hand, believed that the object of knowledge is related to nature’s essence of material things that are not attached to an object and concept as a universal norm. Aristotle believed that the

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unity of the state is important, but not at the heart of the identity of individuals. He felt that the ideal state is a natural order and that all citizens are capable of participating in the politics of the state. However, for both Plato and Aristotle, the end goal of the state is good because value (in other words justice) is a premise of the ideal state. For further information see, for example, Barker (2009), Cherry (2012), Fink (2012) and Polin (2018). 10 See also, for example, Kittay and Feder (2002), Mahon and Robinson (2012), Sevenhuijsen (1998) and Tronto (1993, 2013, 2015). 11 See, for example, Beasley and Bacchi (2000), Butler (1993), Crawley et al. (2008), Diprose (1994, 2002), Gatens (1996), Grosz (1994, 1995), Young (2005) and Youngs (2000). 12 See, for example, Alcalde (2010), Bobel and Kwan (2011), Dalton (2018), Gilligan (2011) and Pitts et al. (2020). 13 In The Challenge to Care in Schools: An Alternative Approach to Education (1992), Noddings revises her earlier position of caring as a feminine approach and encourages educators to practise caring in education and schooling. 14 See Bok (1999), Greenawalt (1995) and Swanson (2019). 15 See Elshtain (1993), Goldman (2004), Hekman (2004) and Lu (2011). 16 See, for example, Burns et al. (2001), Holloway (2011), Landes (1998) and Thornton (1995). 17 See, for example, Chartier (1989) and Veyne (1987). 18 See also Smith (2005). 19 See Chapter 1, titled ‘South Africa 2018: The State of the Discussion on Poverty and Inequality’, by Crain Soudien et al. in Poverty & Inequality: Diagnosis Prognosis Responses for an extended discussion of the meanings of poverty and inequality (2019). The chapter also addresses an approach to poverty and inequality that explains the distinctions between the two categories (2019: 3–5). The authors motivate that poverty and inequality are contested and ambiguous categories that are not entirely discrete, but rather highly interdependent. With a full recognition of the complexity of these categories, the authors describe poverty as ‘a condition of basic lack’ and as a ‘deprivation of capabilities’ (by drawing on some of Amartya Sen’s ideas). Inequality, on the other hand, relates to the ‘uneven distribution of resources’ (Soudien et al. 2019: 3). See also pages 15–18 in the same chapter for a discussion about the multidimensionality of ‘poverty and inequality’. See also the postscript by Vasu Reddy et al., which indicates that poverty is about lacking access beyond needs (and that it ignites social exclusion, multidimensional disadvantage and deprivation) (2019: 313–317). In other words, poverty is largely related to the inability to pursue wellbeing. Inequality is not pre-given but is the result of a complex array of social forces that foreground differences between and opportunities for individuals and groups. Poverty, it seems, generates inequality and has a great deal to do with how a society is structured. 20 As we write this chapter, the country, the continent and the world are in a lockdown brought about by Covid-19, an infectious disease that has resulted in major impacts socially, economically and politically. When conceiving this volume, we could not have imagined that the world of 2019 would be so remarkably and radically altered in 2020. Central here for a future set of arguments, beyond the implications of a public health crisis brought about by the virus, is the huge spectrum of inequalities that the pandemic has generated: massive unemployment, poverty, hunger, lack of access to shelter, lack of access to healthcare, genderbased violence and digital divides in respect of access to data and information. 20

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21 See Barad (2003) and De Landa (2006). 22 See, for example, Goffman (1959). 23 See also Diprose (2009). 24 See also Diprose (1998).

References Alcalde MC (2010) The woman in the violence: Gender, poverty and resistance. Nashville: Vanderbilt University Press Bahnisch M (2000) Embodied work, divided labour: Subjectivity and the scientific management of the body in Frederick W. Taylor’s 1907 ‘Lecture on Management’. Body & Society 6(1): 51–68. https://doi.org/10.1177/1357034x00006001004 Bales S (2018) Social justice and library work: A guide to theory and practice. Kidlington: Chandos Publishing Barad K (2003) Posthumanist performativity: Toward an understanding of how matter comes to matter. Signs: Journal of Women in Culture and Society 28(3): 801–831. https://doi.org/10.1086/345321 Barker E (2009) The political thought of Plato and Aristotle. New York: Dover Publications Barry N (1995) An introduction to modern political theory (3rd edition). London: Macmillan Beasley C & Bacchi C (2000) Citizen bodies: Embodying citizens – a feminist analysis. International Feminist Journal of Politics 2(3): 337–358. https://doi.org/10.1080/14616740050201931 Beerbohm E (2012) In our name: The ethics of democracy. New Jersey: Princeton University Press Bobel C & Kwan S (Eds) (2011) Embodied resistance: Challenging the norms, breaking the rules. Nashville: Vanderbilt University Press Bohler-Muller N (2007) Beyond legal metanarratives: The relationship between storytelling, Ubuntu and care. Stellenbosch Law Review 18(1): 133–160 Bok S (1999) Lying: Moral choice in public and private life. New York: Vintage Bourdieu P (1990) The logic of practice (trans. R Nice). Stanford: Stanford University Press Burns N, Schlozman KL & Verba S (2001) The private roots of public action: Gender, equality, and political participation. Cambridge, MA: Harvard University Press Butler J (1993) Bodies that matter: On the discursive limits of sex. New York: Routledge Chartier R (Ed.) (1989) A history of private life: Passions of the Renaissance (Vol. 3) (trans. A Goldhammer). Cambridge, MA: Belknap Press Cherry KM (2012) Plato, Aristotle, and the purpose of politics. Cambridge, UK: Cambridge University Press Crawley SL, Foley LJ & Shehan CL (Eds) (2008) Gendering bodies. Lanham: Rowman & Littlefield Dalton DM (2018) The ethics of resistance: Tyranny of the absolute. London: Bloomsbury Academic De Landa M (2006) A new philosophy of society: Assemblage theory and social complexity. London: Continuum

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Diprose R (1994) The bodies of women: Ethics, embodiment and sexual differences. London: Routledge Diprose R (1998) Generosity: Between love and desire. Hypatia 13(1): 1–20. https://doi.org/10.1111/j.1527-2001.1998.tb01349.x Diprose R (2002) Corporeal generosity: On giving with Nietzsche, Merleau-Ponty, and Levinas. New York: State University of New York Press Diprose R (2009) Women’s bodies giving time for hospitality. Hypatia 24(2): 142–163 Elshtain JB (1993) Public man, private woman: Women in social and political thought (2nd edition). New Jersey: Princeton University Press England P (2005) Emerging theories of care work. Annual Review of Sociology 21: 381–399 Engster D (2007) The heart of justice: Care ethics and political theory. Oxford: Oxford University Press ETT (Electoral Task Team) (2003) Report of the Electoral Task Team. January 2003. Cape Town: ETT Fink JL (2012) The development of dialectic from Plato to Aristotle. Cambridge, UK: Cambridge University Press Fricker M (2015) Epistemic contribution as a central human capability. In G Hull (Ed.) The equal society: Essays on equality in theory and practice. London: Lexington Books Gabrielson T & Parady K (2010) Corporeal citizenship: Rethinking green citizenship through the body. Environmental Politics 19(3): 374–391. https://doi.org/10.1080/09644011003690799 Gatens M (1996) Imaginary bodies: Ethics, power and corporeality. London: Routledge Gilligan C (1987) Moral orientation and moral development. In E Feder Kittay & DT Meyers (Eds) Women and moral theory. Lanham: Rowman & Littlefield Gilligan C (1993) In a different voice: Psychological theory and women’s development (2nd edition). Cambridge, MA: Harvard University Press Gilligan C (2011) Joining the resistance. Cambridge, UK: Polity Press Gilligan C & Attanucci J (1988) Two moral orientations: Gender differences and similarities. Merrill-Palmer Quarterly 34(3): 223–237 Gilligan C & Snider N (2017) The loss of pleasure or why are we still talking about Oedipus? Contemporary Psychoanalysis 53(2): 173–195. https://doi.org/10.1080/00107530.2017.1310586 Goffman E (1959) The presentation of self in everyday life. Garden City: Doubleday Goldberg D (2002) The racial state. Malden: Blackwell Goldman AI (2004) Pathways to knowledge: Private and public. Oxford: Oxford University Press Greenawalt K (1995) Private consciences and public reasons. New York: Oxford University Press Greene RR (2007) Contemporary issues of care. London: Routledge Greenswag KM (2016) Globalizing the ethics of care: Policy, transformation, and judgement. PhD thesis, University of Sydney Grosz E (1994) Volatile bodies: Toward a corporeal feminism. Bloomington: Indiana University Press Grosz E (1995) Space, time, and perversion: Essays on the politics of bodies. New York: Routledge Gutmann A & Thompson D (Eds) (2005) Ethics and politics: Cases and comments. Belmont: Thomson Wadsworth Publishing

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Haegert S (2000) An African ethic for nursing? Nursing Ethics 7(6): 492–502. https://doi.org/10.1177/096973300000700605 Hamington M & Miller DC (2006) Socializing care: Feminist ethics and public issues. Lanham: Rowman & Littlefield Hankivsky O (2004) Social policy and the ethic of care. Vancouver: University of British Columbia Press Hegel G (1952/1820) Philosophy of right. Oxford: Oxford University Press Hekman S (1995) Moral voices, moral selves: Carol Gilligan and feminist moral theory. Cambridge, UK: Polity Press Hekman SJ (2004) Private selves, public identities: Reconsidering identity politics. University Park: Pennsylvania State University Press Held V (2006) The ethics of care: Personal, political, and global. Oxford: Oxford University Press Holloway KFC (2011) Private bodies, public texts: Race, gender, and a cultural bioethics. Durham NC: Duke University Press Hutchings K (2000) Towards a feminist international ethics. Review of International Studies 26(5): 111–130 Jacobsen T, Sampford C & Thakur R (Eds) (2016) Re-envisioning sovereignty: The end of Westphalia? Law, Ethics and Governance series. London: Routledge Kant I (1964/1786) Groundwork of the metaphysics of morals (trans. M Gregor). New York: Harper Torchbooks Kittay EF & Feder EK (Eds) (2002) The subject of care: Feminist perspectives on dependency. New York: Routledge Knackstedt M (1994) Hegel’s theory of the state. In State and revolution: Hegel, Marx and Lenin. Accessed 20 February 2020, www.logomancer.com/state/chapter1.html Landes JB (Ed.) (1998) Feminism, the public and the private. Oxford: Oxford University Press Lawson V (2007) Geographies of care and responsibility. Annals of the Association of American Geographers 97(1): 1–11 Lee N & Motzkau J (2011) Navigating the bio-politics of childhood. Childhood 18(1): 7–19. https://doi.org/10.1177/0907568210371526 Lu C (2011) Just and unjust interventions in world politics: Public and private. New York: Palgrave Macmillan Lynch RA (2016) Foucault’s critical ethics. New York: Fordham University Press Mafeje A (1971) The ideology of tribalism. Journal of Modern African Studies 9(1): 252–261 Mahon R & Robinson F (Eds) (2012) Feminist ethics and social policy: Towards a new political economy of care. Vancouver: University of British Columbia Press Mikula G (2001) Justice: Social-psychological perspectives. In NJ Smelser & PB Baltes (Eds) International encyclopedia of the social and behavioral sciences. Oxford: Elsevier Myers E (2013) Worldly ethics: Democratic politics and care for the world. Durham NC: Duke University Press Noddings N (1984) Caring: A feminine approach to ethics and moral education. Oxford: Oxford University Press 23

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Noddings N (1992) The challenge to care in schools: An alternative approach to education. New York: Teachers College Press Noddings N (2013) Caring: A relational approach to ethics and moral education (2nd edition). Berkeley: University of California Press Noddings N & Slote M (2003) Changing notions of the moral and of moral education. In N Blake, P Smeyers, R Smith & P Standish (Eds) The Blackwell guide to the philosophy of education. Malden: Blackwell Publishing NPC (National Planning Commission) (2012) National Development Plan 2030: Our future – make it work. Pretoria: The Presidency. Accessed 20 October 2020, https://www.gov.za/ documents/national-development-plan-2030-our-future-make-it-work Phillips J (2007) Care. Key Concepts series. Cambridge, UK: Polity Press Pitts AJ, Ortega M & Medina J (Eds) (2020) Theories of the flesh: Latinx and Latin American feminisms, transformation and resistance. New York: Oxford University Press Polin R (2018) Plato and Aristotle on constitutionalism: An exposition and reference source. London: Routledge Porter EJ (2006) Can politics practice compassion? Hypatia 21(4): 97–123. https://doi.org/10.1111/j.1527-2001.2006.tb01130.x Radebe J (2015) National Development Plan, Vision 2030: Its impact on the development of good governance. Public lecture delivered at Unisa, Pretoria, 30 September 2015. Accessed 20 February 2020, https://www.gov.za/speeches/minister-jeff-radebe-public-lecture%E2%80%9Cnational-development-plan-vision-2030-its-impact Rawls J (1971) A theory of justice. Cambridge, UK: Harvard University Press Razavi S (Ed.) (2012) Seen, heard and counted: Rethinking care in a development context. London: Wiley Razavi S & Staab S (Eds) (2012) Global variations in the political and social economy of care: Worlds apart. London: Routledge Reddy V, Meyer S, Shefer T & Meyiwa T (Eds) (2014) Care in context: Transnational gender perspectives. Cape Town: HSRC Press Reddy V, Soudien C & Woolard I (2019) Poverty and inequality: A postscript. In C Soudien, V Reddy & I Woolard (Eds) Poverty & inequality: Diagnosis prognosis responses. State of the Nation series. Cape Town: HSRC Press Sevenhuijsen S (1998) Citizenship and the ethics of care: Feminist considerations on justice, morality and politics. London: Routledge Sevenhuijsen S (2000) Caring in the third way: The relation between obligation, responsibility and care in Third Way discourse. Critical Social Policy 20(1): 5–37. https://doi.org/10.1177/026101830002000102 Sevenhuijsen S (2003) The place of care: The relevance of the feminist ethic of care for social policy. Feminist Theory 4(2): 179–197. https://doi.org/10.1177/14647001030042006 Shanyanana RN (2014) Examining the potential of an ethics of care for inclusion of women in African higher education discourses. PhD thesis, Stellenbosch University Shilling C (2003) The body and social theory (2nd edition). London: Sage Publications

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Singer P (Ed.) (1993) A companion to ethics. Oxford: Blackwell Publishing Singer P (2015) The most good you can do: How effective altruism is changing ideas about living ethically. New Haven: Yale University Press Skeggs B (2004) Context and background: Pierre Bourdieu’s analysis of class, gender, and sexuality. The Sociological Review 52(2): 19–33. https://doi.org/10.1111/j.1467954x.2005.00522.x Slote M (2007) The ethics of care and empathy. New York: Routledge Smith N & Lee D (2015) Corporeal capitalism: The body in international political economy. Global Society 29(1): 64–69. https://doi.org/10.1080/13600826.2014.976608 Smith S (2005) States, markets and an ethic of care. Political Geography 24(1): 1–20 Soudien C, Reddy V & Woolard I (2019) South Africa 2018: The state of the discussion on poverty and inequality. In C Soudien, V Reddy & I Woolard (Eds) Poverty & inequality: Diagnosis prognosis responses. State of the Nation series. Cape Town: HSRC Press Spivak GC (1987) In other worlds: Essays in cultural politics. New York: Routledge Stats SA (Statistics South Africa) (2019) Inequality trends in South Africa: A multidimensional diagnostic of inequality. Report No. 03-10-19. Pretoria: Stats SA Swanson JA (2019) The public and the private in Aristotle’s political philosophy. Ithaca: Cornell University Press Thornton M (Ed.) (1995) Public and private: Feminist legal debates. Melbourne: Oxford University Press Tronto J (1993) Moral boundaries: A political argument for an ethic of care. New York: Routledge Tronto J (2013) Caring democracy. New York: New York University Press Tronto J (2015) Who cares? How to reshape a democratic politics. Ithaca: Cornell University Press UN DESA (United Nations Department of Economic and Social Affairs) (2006) Social justice in an open world: The role of the United Nations. New York: UN. Accessed 6 October 2020, https://www.un.org/development/desa/socialperspectiveondevelopment/2015/08/20/socialjustice-in-an-open-world-the-role-of-the-united-nations/ Van Staveren I (2005) Modelling care. Review of Social Economy 63(4): 567–586 Veyne P (Ed.) (1987) A history of private life: From pagan Rome to Byzantium (Vol. 1) (trans. A Goldhammer). Cambridge, MA: Belknap Press Waghid Y & Smeyers P (2012) Reconsidering Ubuntu: On the educational potential of a particular ethics of care. Educational Philosophy and Theory 44(2): 6–20. https://doi.org/10.1111/j.1469-5812.2011.00792.x Weigert K (2015) Social justice: Historical and theoretical considerations. In JD Wright (Ed.) International Encyclopedia of the Social and Behavioural Sciences (2nd edition). Amsterdam: Elsevier Young IM (2005) On female body experience: ‘Throwing like a girl’ and other essays. New York: Oxford University Press Youngs G (Ed.) (2000) Political economy, power and the body. Basingstoke: Palgrave Macmillan

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Reconsidering South Africa’s electoral system: What are the alternatives? Sithembile Mbete and Vasu Reddy

Nearly three decades after the watershed 1994 elections, democratisation has not brought about the significant improvement in economic wellbeing that many desired and expected. With a nearly 40% unemployment rate and one of the highest levels of inequality in the world, the majority of South Africans have not yet fully celebrated the fruits of freedom from apartheid. In fact, democratic South Africa has manifested a plethora of political problems that warrant change. South Africans have, for example, witnessed numerous corruption scandals in the past 26 years, including the so-called Arms Deal, state capture linked to the Gupta family and, most recently, irregularities in emergency procurement in response to the Covid19 pandemic.1 A combination of unethical conduct and weak administration – in several instances amounting to maladministration – has contributed to the rising poverty and inequality in South Africa, a situation that requires remedying (SchulzHerzenberg & Southall 2019). In the midst of these political crises in the country, the democratic project has raised calls for electoral reform. While it is not a simple and magical solution, electoral reform can contribute to the deepening and strengthening of democracy to enhance participatory politics. Ultimately, electoral reform is not just about legal and political instruments; it also involves ethical interventions focused on interventive change to systems. Changes could lead to improvement in the status of public needs as a consequence of electoral results, indicating that voters and reform activists can have real power over electoral processes.2 Critics argue that the system of closed-list proportional representation (PR) used in national and provincial elections (NPEs) makes political representatives more accountable to their parties than to voters (Hamilton 2014).3 In particular, critics point to the so-called nine wasted years of the administration of former president Jacob Zuma and the unsuccessful votes of no confidence in the National Assembly, which failed to remove him as president.4 Observers have argued that if South Africa had a different electoral system it would have been easier to hold the president to account, because the ANC would have been unable to use its majority in Parliament to block the votes of no confidence. According to this view, a constituency-based system would increase accountability to the electorate, because public representatives would be elected directly and require the consent of voters – rather than their political party bosses – to stay in power (Robinson 2020).5 The challenge to this view is that PR systems do not usually result in dominant party systems such as the one we have in South Africa. According to the political science literature, PR systems 29

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tend to lead to multiparty systems and yield coalition governments.6 To the contrary, South Africa’s PR system has strengthened the ANC’s electoral dominance, making the country’s dominant party system an outlier among democracies (Li 2017). This demonstrates that the ills of corruption and impunity associated with ANC electoral dominance will not necessarily disappear with a different electoral system. As Karen Ferree contends, ‘[e]lectoral rules are but one piece in a broad mosaic of rules and institutions that shape party system outcomes’ (2018: 958). When we wrote the first version of this chapter, the prospects of electoral reform seemed unlikely, because it is not in the interests of any of the parties in Parliament to substantially change an electoral system that gives party leaders so much power over public representatives.7 Despite several attempts to embark on electoral reform since 1994 – including the 2003 report of the Electoral Task Team (ETT 2003), chaired by former MP Dr Frederik van Zyl Slabbert, and a 2013 Private Members’ Bill introduced by the Democratic Alliance (DA) proposing electoral reform – the debate has struggled to gain traction in South Africa. That state of affairs changed when an organisation called the New Nation Movement (NNM) and three other applicants brought an appeal case seeking direct access to the Constitutional Court (CC) to challenge the Electoral Act (No. 73 of 1998) for not allowing individuals to contest office in NPEs.8 The NNM and others argued that the Electoral Act infringes on the right to freedom of association and the right to run for office (focused on sections 18 and 19 of the Constitution of the Republic of South Africa, 1996, respectively), by only permitting political parties to register to contest elections. On 11 June 2020, the CC passed a judgment in favour of the NNM (hereafter referred to as the NNM judgment) and gave Parliament 24 months to amend the electoral legislation to align it with section 19 of the Constitution.9 This pioneering judgment has revived the debate on electoral reform and has created the prospect of people voting directly for members of national and provincial legislature in 2024, which many find encouraging. However, much of the excitement seems misplaced, because it is not clear whether the coming change in the electoral system will yield the results that people desire, namely greater government accountability, participation by the electorate and responsiveness. A key question that has ethico-political implications is this: Will changing the electoral system enhance South African democracy and empower citizens? Formulated another way: Would changing the electoral system make politicians more accountable to citizens? This chapter motivates that the answer to both of these questions is no. Electoral system reform is only one part of solving the problems of unaccountability and unethical governance facing South Africa. Ultimately, a critical engagement about what kind of electoral system we need in order to enable accountability and responsiveness and give people a sense of ownership in the state and government is, fundamentally, about a crisis of representation. What does representative government mean in South Africa? What does citizenship mean in our context?

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These are some of the pertinent questions that shape the argument in this chapter in an effort to address alternatives to the current electoral system.

The crisis of representative democracy in a postcolonial state The Varieties of Democracy (V-Dem) Institute has produced a global dataset on democracy for 202 countries from 1789 to 2018. In its 2019 report, the institute found that there was a rising wave of authoritarian regimes across the world – labelled ‘autocratisation’ – with one-third of the world’s population living in countries undergoing autocratisation. In addition, the number of liberal democracies declined from 44 in 2008 to 39 in 2018 (V-Dem Institute 2019: 5). In spite of differences in geopolitics, one key question underpins studies on the crisis of representative democracy: How can we achieve genuine democratic representation in societies defined by increasing inequality and political polarisation?10 Representative democracy is a complex political order that encompasses two apparently contradictory political traditions. The word ‘democracy’ – from the Greek demos (the people) and kratia (power/rule) – means ‘rule by the people’. On the other hand, ‘representation’ – from the Latin repraesentare (exhibit) – ‘entails a delegated action on the part of some on behalf of someone else’ (Urbinati 2011: 23). The tension between democracy, where ‘the citizens make the laws themselves’, and representative government, where citizens entrust others with the power to make laws and exercise power on their behalf, has been a subject of debate over the past 200 years (Hamilton 2014: 64). Elections are the mechanism through which the people express their will, make choices and select those they wish to represent them. Representative democracy has the following features: (a) the sovereignty of the people expressed in the electoral appointment of the representatives; (b) representation as a free mandate relation; (c) electoral mechanisms to ensure some measure of responsiveness to the people by representatives who speak and act in their name; and (d) the universal franchise, which grounds representation on an important element of political equality. (Urbinati 2011: 23) However, in an earlier argument, Nadia Urbinati formulated several pertinent issues relevant to the issue of representational politics. She claims that participation and representation are not ‘alternative forms of democracy, but related forms’ and motivates the centrality of and insistence on ‘presence through voice’ to be critical, as it ‘plays a key role in forging the democratic character of politics’ (2006: 3). More importantly, for Urbinati, ‘representation highlights the idealizing and judgmental nature of politics’, which refers to ‘an art by which individuals transcend the immediacy of their biographical experience and social and cultural belongings and interests, and educate and enlarge their political judgment on their own and other’s opinions’ (2006: 5). Critically, representation is a comprehensive filtering, refining and mediating process of political will formation and expression … It helps to depersonalize claims and 31

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opinion, which in turn allows citizens to mingle and associate without erasing the partisan spirit essential to free political competition or obscuring the majority/minority divide. (Urbinati 2006: 6) For Urbinati, a vote for a candidate, as in representative democracy, ‘reflects the longue durée and effectiveness of a political opinion or a constellation of political opinions; it reflects citizens’ judgment of a political platform, or a set of demands and ideas, over time’ (2006: 31). Urbinati emphasises a view that remains central to arguments in this volume of State of the Nation, which is focused on ethics. This view recognises that ‘democratic society is built around conflict’ and not around ‘organic unity or harmony’; it emphasises the positive role of ‘speech and opinions as the means by which a multitude of concrete individuals overcome their irreducible singularity and converge into common political platforms and intents’ (2006: 35). In other words, the question of representation remains central to the idea and meaning of developing an ethical state emboldened by care, collaboration, participation and a mutual exchange of ideas: In a society in which citizens are free to express their ideas (and actually are required to express them about lawmakers and sometimes laws), political representation becomes the special terrain in which individuals’ social and cultural specificity surfaces rather than congeals under the legal status of citizenship. (Urbinati 2006: 227) In 1994, South Africa adopted a system of representative democracy characterised by some of the defining features listed above. South Africa was part of the so-called ‘third wave’ of democratisation that followed the end of the Cold War. Following decades of white supremacist rule, in which the majority black population was denied the franchise, the first democratic elections in 1994 heralded the return of power to the people through a rights-based political order. Section 1 of the founding provisions of the Constitution unambiguously states: The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms. (b) Non-racialism and non-sexism. (c) Supremacy of the Constitution and the rule of law. (d) Universal adult suffrage, a national common voters’ roll, regular elections and a multi-party system of democratic government, to ensure accountability and responsiveness and openness. However, in 2020, there is a pervasive sense that South Africa’s democracy has failed to live up to the ideals and promise of its founding provisions. In particular, the ‘multi-party system of democratic government’ appears to be unable to ‘ensure accountability and responsiveness and openness’. South Africa is not unique in this respect. It is increasingly clear that the world is facing a crisis of representative democracy.11 Although there are more democracies than a decade ago, the 32

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outcomes of elections are failing to represent the will of the people, leading to widespread discontent with democracy and the resurgence of authoritarianism across the world,12 including the ‘consolidated’ liberal democracies of the USA and Europe that have long been held up as the governance gold standard (Friedman 2018). Political scientists repeatedly raise concerns of ‘a democratic recession’, with more countries experiencing declines in the quality of democracy rather than improvement.13 Robert Mattes, in a 2019 Afrobarometer policy paper, states that only 23% of South Africans surveyed between 2016 and 2018 prefer democracy and reject all forms of authoritarian rule. This decline in what is termed ‘demand for democracy’ reflects a deep frustration that democracy is not functioning the way it should to meet the political, social and economic needs of the people (Mattes 2019: 9). Hamilton has made persuasive arguments in this regard in extending his idea of freedom to politics: Existing forms of representation in South Africa not only fail to enable citizens to overcome various forms of domination. They also generate an environment that is conducive to numerous practices that are deleterious to overcoming domination and generating liberty through political representation, practices such as pervasive rent-seeking, oneparty dominance, corruption and impunity among representatives, centralised executive power and a dangerous overemphasis on unity and solidarity. (2014: 63) One way of understanding South Africa’s democratic crisis is by analysing the country in the context of its history as a postcolonial African state. Mahmood Mamdani has theorised obstacles to democratisation in Africa as a consequence of the bifurcated state created by both direct and indirect forms of colonial rule, which exercised two opposing forms of power over urban and rural areas within the same authority. He argues that urban power spoke the language of civil society and civil rights, rural power of community and culture. Civil power claimed to protect rights, customary power pledged to enforce tradition. The former was organised on the principle of differentiation to check the concentration of power, the latter around the principle of fusion to ensure a unitary authority. (2017: 17) Those subject to urban power were citizens, while those subject to rural power were subjects. Mamdani argues persuasively that these dichotomies of power and authority continue to inform the politics of postcolonial African states, including South Africa, which is so often treated as an exceptional case because of its semiindustrial and semi-urban economy as well as its status as a settler colony with the largest white population in Africa (2017). Lungisile Ntsebeza explains how the manner in which the ANC government has extended democracy in rural areas under traditional authorities risks entrenching

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the ‘authoritarian and despotic’ tendencies of colonialism and apartheid (2005: 58). Ntsebeza further contends that there is tension in the Constitution between enshrining democratic principles largely modelled along liberal democratic lines of representative government on the one hand, and recognising and giving wideranging powers to an inherently undemocratic hereditary institution of traditional leadership on the other. (2005: 58) At issue is whether rural residents will achieve full citizenship with all its attendant rights or whether they will ‘continue to be subjects under the rule of unelected traditional authorities’ (Ntsebeza 2005: 59). Indeed, the highly contentious Traditional Courts Bill [B1–2017], which was passed by the National Assembly in 2019 and is currently under consideration in the National Council of Provinces (NCOP), has been criticised by NGOs for entrenching a parallel legal order for rural people without the protection of the Constitution. Despite claiming to align traditional courts with the Constitution, the Bill violates the right to legal representation guaranteed in the Bill of Rights by stating, in section 7(4)(b), that ‘no party to any proceedings before a traditional court may be represented by a legal practitioner acting in that capacity’. In addition, the Bill makes traditional leaders the presiding officers of traditional courts, creating a top-down system that reifies colonial and apartheid-era definitions of traditional leadership.14 In a series of public hearings on the Bill in February 2020, traditional leaders lamented that they were not consulted in the drafting of the Bill and ‘Senior Paramount Chief Botha of the Khoisan Royal House said the process was farcical and just another manner for government officials to submit rightful and indigenous leaders to their control’.15 As taken up later in the chapter, in a curious turn of events, the demand for recognition by a leader of the Korana nation, Ms Chantal Dawn Revell, was a major factor in the NNM judgment that initiated the current process of electoral reform. This demonstrates that the system of liberal representative government and that of traditional authority co-constitute each other in unexpected ways. As ably discussed by feminist scholar Nomboniso Gasa, the post-apartheid government, elected according to the rules of the liberal Constitution, has used legislation to affirm ‘the power, status and standing’ of unelected traditional leaders, who rule over 17 to 18 million South Africans (2011: 29). At the same time, these unelected traditional authorities use liberal democratic institutions, such as the legislative process in the National Assembly and bringing litigation in front of the courts, to advance their interests. Focusing more on the urban context, Thiven Reddy situates South Africa’s political crisis within its history as a settler colony whose ‘modernity turned on the settled minority both relying on the majority’s labour and lands and excluding blacks from the political community since the period of colonial conquest’ (2015: 5). The consequence of this settler-colonial history is that democratic South Africa is defined by inequality and is effectively shaped by two conjoined political systems.

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On the one hand, there is ‘a Western-type democratic system’ containing the lauded democratic institutions negotiated during the transition, including free and fair elections, the lauded liberal Constitution and institutions underlining the rule of law with an independent judiciary. This system represents the elites and middle classes, which have become the most deracialised social classes, including the majority of the white population and growing proportions of African, coloured and Indian people. However, the majority of South Africans operate within a different political system that is not governed by the orderly processes and formal laws associated with Western democracy. For the majority, ‘its collective action relies on mass demonstrations, violent and threatening discourses to indicate impatience, criminality and disrespect for the law, and collectivism that relies on both organisation and informality’ (Reddy 2015: 6). In a critique of the ANC’s adoption of neoliberalism in the period immediately after 1994, Tshepo Madlingozi motivates that ‘the state’s turn to neoliberalism has effectively negated the Constitution’s promise to “improve the quality of life of all citizens and to free the potential of each person”’ (2007: 80). With a focus on the rise of social movements in the second decade of South Africa’s democracy, he evaluates the prospects of grassroots challenges to the government’s neoliberal policies and the marginalisation of poor communities from structures of democratic governance. Madlingozi goes on to trace the erosion of participatory democratic practices to the evolution of the United Democratic Front (UDF), which was formed in 1983 as an umbrella movement bringing together 565 organisations from a variety of class, political and ideological backgrounds in the struggle against apartheid. While the early years of the UDF were characterised by the ‘momentum for action from below, where the people were themselves politicised and mobilised’, by 1987 its politics were centralised under the broad church of the ANC (2007: 83). Madlingozi contends that ‘the hegemony of the ANC and its allies over the national liberation struggle had devastating consequences for ideological and organisational diversity represented by grassroots organisations affiliated to the UDF’ (2007: 85). Since the late 1990s South Africa has seen a rise of social movements aiming to fill the gap in participatory democracy and to find alternative means of collective action.16 Instead of using the mechanisms of formal democracy, South Africans have increasingly used public protests to express their grievances with government, focused on, for example, land rights, worker rights, HIV and/or AIDS, gender and much more. As Lauren Tracey-Temba explains, ‘this is particularly true for the youth, who are often seen participating in social movements and disruptive protests’ (2018: 3). This is especially the case for young men, who are more likely to participate in protests than young women are. While the visibility of men at protests may be quantifiably higher, the lower attendance of women does not imply that deep-seated levels of poverty and inequality (including unemployment) affect women less. In fact, the feminised nature of poverty and inequality means that women’s burdens of child-rearing and care place heavier restrictions on their ability to fully participate in protests. However, it has been found that young women participate in elections at

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higher rates than young men do. For example, in the 2019 NPEs, 1.8 million women between the ages of 18 and 29 turned out to vote, compared to 1.4 million men in the same age group (IEC 2019: 68). In a study of young people’s attitudes towards democracy, Tracey-Temba found that most young people have given up on formal democratic participation because of the perception that nothing changes after elections (2018). The perception that ‘nothing changes’ has much to do with unrealised election promises focused on improvements to the lives and wellbeing of citizens. While new parties such as the Economic Freedom Fighters (EFF) have made visible inroads into the electorate and have stimulated greater interest in formal politics (Mbete 2015), many young people have chosen to abstain from voting because politicians fail to live up to their promises. The view among elites, including political leaders and upper- and middle-class voters, is that young people engage in destructive protests as their preferred method of politics.17 However, as one of the young women interviewed by Tracey-Temba explains, ‘it doesn’t just get to protesting first, they go to the offices, the government offices to report whatever problem they have and then if they don’t seen an action then that’s when they start protesting’ (in Tracey-Temba 2018: 12). Another disillusioned young woman identifies the problems of corruption and nonaccountability by local leaders as the reason for protests. She says: It is very difficult to bring up the burning issues that we have as a community … because of the corrupted leaders. There is like that thing that if you are the local councillor, I come and I report the issues that you know are our problem. But, because you know that [person and that] her position will be affected and you are friends, it doesn’t directly get to her, you understand. So, the only way [we] will catch your [the local councillor’s] attention, especially these corrupted leaders, the ones that don’t give us the attention, we just protest because now we know it will be nationally recognised and it will shake them out of their comfort zone. (in Tracey-Temba 2018: 13) This testimony addressing the lack of accountability of local councillors is concerning given the fact that representative democracy at the local government level uses a mixed system of PR and direct constituency elections. Protest increasingly becomes a rallying call for bringing attention to problems, achieving visibility and, ultimately, gaining recognition. In this context, calls to reform the electoral system at the national and provincial levels are based on the assumption that the direct election of representatives will improve accountability and reduce corruption purely because the electorate have greater powers to exercise their choices in the right to vote.

Types of electoral system There are many different kinds of electoral systems, which can, broadly, be placed into three categories: first-past-the-post (FPTP), PR and mixed systems.18 FPTP is a system inherited from the Anglo-American tradition and is used in countries such as 36

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the UK, India and Canada, and most countries of the Southern African Development Community (SADC), such as Botswana, Lesotho, Malawi, Tanzania, Zambia and Zimbabwe (Kadima 2003: 36). In this system, the winning candidate is the one that wins the most votes in a specific geographic electoral district or constituency. The greatest disadvantage is that it is possible for a minority party to win the majority of seats in the government, because the threshold is a simple majority. It is thus possible for a party that does not represent the majority of voters to win the greatest number of seats in parliament and therefore lead government. This is how the National Party (NP) came to power in 1948 despite winning only 37% of the total vote, compared to the 49% won by the governing party at the time. PR systems are intended to distribute seats in proportion to the support a party receives in the polls. This system (usually shaped by party lists) is based on an idea of representation according to which legislature must reflect the composition of society. There are two types of party list systems: a closed list and an open list. Closed-list systems are the simplest type of PR. Political parties compile a list of candidates in order of preference. The candidate at the top of the party list is the first to be allocated a seat, and the process goes down the list until all seats won have been assigned. Voters cannot indicate their preferences within the list but must accept the party list as it is; voters effectively choose the party they want. The PR list is the most suitable system of representation as far as the fair representation of majorities and minorities is concerned (Kadima 2003: 43). In addition, when well designed, PR can be effective in nation-building efforts, as it tends to encourage political parties to seek votes and membership across communities. This limits the attractiveness of mono-ethnic, mono-racial or mono-religious parties and prevents the political instability that would result from the de facto exclusion of some communities from parliament or government. Recent elections in SADC countries have shown that women are better represented in PR systems (GenderLinks 2018). South Africa ranks highly in terms of the number of women represented in national Parliament but has fewer women representatives at local government level (Gouws 2019; Makhunga 2016; Sadie 2017). Women make up 45% of MPs in the sixth Parliament elected in the May 2019 elections.19 At local government level, where there is a mixed system – half of the seats in any municipality are made up of PR from political parties’ closed lists and the other half of the seats are made up of ward councillors who are elected directly in their wards – the majority of ward councillors are men (Hicks et al. 2016). In the 2016 local government elections, women made up 33% of the ward councillors elected and 48% of PR councillors; the latter was because some political parties have quotas for their party lists (Sadie 2017: 50). A mixed system is a combination of FPTP and PR that aims to achieve the best of both systems. Voters vote for individual candidates in their constituency and then proportionality is restored using party lists. Part of the legislature is chosen through closed-list PR and the rest is chosen through single-member constituencies. Mixed systems include such a variety of combinations of the mechanics of FPTP and PR 37

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and yield such a diversity of outcomes that it is difficult to generalise about their advantages and disadvantages (Massicotte & Blais 1999). South Africa has a mixed system at local government level, with 50% of councillors in local and metropolitan councils elected from closed PR lists and 50% from FPTP ward contests. Theoretically, electoral systems have certain characteristics that inform the functioning of democracy: • Electoral systems shape the political party system. Different electoral systems produce variations in the number, size, organisational structure and campaign strategies of parties and in the power relationships between parties and candidates. Selecting an electoral system entails making choices about what kind of political party system is desired in a democracy. • An electoral system serves as a tool for conflict management among political competitors by creating a structure for electoral competition. An electoral system can prevent or exacerbate existing political conflicts. European countries have PR systems that often yield coalition governments; therefore, European political parties, for the most part, are often incentivised to cooperate because they may need each other to form a coalition. An FPTP system, as evident in the UK, often results in zero-sum politicking, because there is a greater chance for one party to win an absolute majority. • Electoral systems influence how citizens participate in electoral politics and their attitudes to voting. South Africa’s electoral system is increasingly being blamed for rising voter apathy, as voters do not believe they can influence the electoral outcomes or the actions of elected leaders. • Electoral systems influence the development of policy by determining who is elected and who is not. A political party or candidate that wins power under one electoral system would not necessarily win power under another system (Forum for Public Dialogue 2017).

The history of South Africa’s electoral system South Africa’s electoral system must be understood within the context of the country’s position as a postconflict democracy that experienced a negotiated transition from apartheid to democratic rule (Matlosa 2004). One of the central questions discussed during the constitutional negotiations between 1992 and 1994 was how to create an inclusive and widely representative political system in a highly polarised society. If the choice of an electoral system reflects the values and principles that underpin a political system and the desired outcomes for that system, then South Africa’s choice of a closed-list PR system in the negotiations of the Convention for a Democratic South Africa (Codesa) reflects the values of fairness and inclusivity as well as the desired outcomes of stability and security. Tom Lodge (2003) describes the choice of the post-apartheid electoral system as one of the less contentious tasks of the constitutional negotiations, because the three main parties – the ANC, the Democratic Party (DP) and the NP – all favoured a PR

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system. The DP proposed a mixed-member PR system, with 300 parliamentarians representing 100 constituencies and 100 parliamentarians chosen from party lists. The NP also proposed a mixed system, but the details were vague, with ‘an indication of how little thought most National Party leaders had invested in the details of the new electoral system’ (Lodge 2003: 72). The ANC was initially opposed to a PR system, because it interpreted the DP’s and NP’s support of proportionality as an attempt to maintain white electoral dominance. However, sentiments had changed by the party’s national conference in May 1992, when it adopted policy guidelines that proposed a list-based PR system at national level. Lodge cites Kader Asmal, the ANC’s constitutional specialist (who later served as Minister of Water Affairs in the Mandela government and as Minister of Education under Mbeki), arguing in favour of PR because ‘the cultural, social and economic diversity of South Africa requires the adoption of an electoral system at all levels which will enable sectoral groups to be adequately represented in decision making’ (2003: 72). The acceptance of PR by the ANC appears to have been prompted by an increased certainty, by late 1990, that the party would win a majority of support in an election regardless of the electoral system used. The drafters of the Interim Constitution agreed that a closed-list PR system would result in a parliament that mirrored the electorate, allowing a diversity of political groups to be represented. Another consociational mechanism was the provision of an executive power-sharing arrangement, according to which parties with more than 5% of the vote would form part of a Government of National Unity (GNU), with Cabinet places allocated in proportion to their electoral support. Lodge argues that power-sharing was ‘an indispensable condition’ put forward by the NP, who conceded to non-racial elections based on a common voters’ roll (2003: 74). The Interim Constitution also provided for a governance system with regional or federal characteristics, which appealed to the Zulu-nationalist Inkatha Freedom Party (IFP) and the Afrikaner right, who wanted to ensure the protection of their group rights in a democratic system. A way to ensure this was the proposal of a list-based PR system with both national and regional party lists to ensure proportional representation of regions in Parliament. The electoral arrangements in the Interim Constitution were meant to be temporary and apply only to the 1994 election, with a more permanent electoral system to be decided in the constitutional negotiations (Hamilton 2014). Arend Lijphart argues that ‘the interim constitution was almost permanently consociational’ (1998: 144). The NP’s hopes for having substantial influence over the GNU were dashed in the early years of South Africa’s democracy, when its leaders realised that being a junior partner in the government meant having to endorse Cabinet decisions that contradicted party positions (Southern 2015). As Neil Southern explains, ‘instead of carving out a distinctive position vis-a-vis policy the structure of the GNU and the NP’s status as a minor partner within it compelled the party to back proposals adopted by the ANC’ (2015: 242). The NP withdrew from the GNU in 1996 as a substantially weaker party than it had been before 1994, and

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with its leadership’s credibility among its support base significantly weakened. The IFP remained part of the government until 2004. While Lijphart has argued that consociationalism ‘has served South Africa – all South Africans – very well’ (1998: 144), Lawrence Hamilton disputes this view by arguing that although South Africa’s elite negotiated settlement enabled a relatively peaceful transition to democracy, ‘the unique focus’ of elite compromises on ‘existing elite interests sacrifices future freedom and stability at the altar of short-term strategy and security’. Hamilton further motivates that ‘the South African case, then, belies the arguments in support of a consociational arrangement, in which power elites in sharply divided societies secure transitions to democracy best by means of a political power-sharing deal’ (2014: 64). A country’s electoral system reflects the core values and principles that are the foundation of that electoral system. During the South African constitutional negotiations, four core values were identified for the electoral system – inclusiveness, fairness, simplicity and accountability: • Inclusivity is one of the central values enshrined in the South African Constitution and reflected in the South African electoral system. The PR system was chosen to allow for maximum inclusivity given the demographic, ethnic, racial and religious diversity of the South African population. This was considered important in order to minimise instability and conflict in the immediate aftermath of apartheid. • Closed-list PR contributes to the perceived fairness of the system because every vote is of equal value and the results of the election reflect the aggregated preferences of the voters in a proportional way. As Wilmot James and Adrian Hadland have argued, ‘fairness can also be understood as a fundamental requirement for legitimacy’ (2003: 19). • A simple balloting procedure was considered important for the 1994 elections, which were to be the first national vote for the majority of the electorate. Simple voting procedures lessen incidents of spoilt ballots and also contribute to the credibility of the elections. However, the mixed municipal election system, with ward, local and district ballots for voters outside of metropolitan areas, has since demonstrated that the South African population can manage complex balloting procedures. • Of the four principles, accountability has become the most debated as South Africa’s democracy has matured, because of the concern that the current electoral system does not result in the accountability of elected representatives to the people who voted for them.20 Accountability can be defined as ‘the obligation of those with power or authority to explain their performance or justify their decisions’ (Hoffman 2012: 84). Accountability is linked to responsiveness – the idea that government officials will listen to the grievances of the people and respond effectively. It is an essential aspect of the social contract between the people and their representatives.21 Essentially, an accountable government is one that fully expresses the will of the people and has built-in mechanisms to prevent attempts to usurp the will of the people. Over the years, one of the prime

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criticisms of South Africa’s ruling elite has been that they are not accountable to citizens. As repeatedly mentioned in this chapter, there is a growing gap between elected representatives and the people they are meant to serve. This gap is inflected by and has manifested in the rise of protest as the primary mode of democratic discomfit and expression, particularly among young people (Tracey-Temba 2016). The final Constitution of 1996 retained the electoral system used in 1994 for the 1999 election. Schedule 6 of the Constitution, headed ‘Transitional Arrangements’, stipulates that the election procedures set out in the Interim Constitution apply to ‘the first election of the National Assembly under the new Constitution’. However, subsection 46(1) of the final Constitution states that the National Assembly consists of no fewer than 350 and no more than 400 women and men elected as members in terms of an electoral system that is prescribed by national legislation; based on a national common voters roll; provides for a minimum voting age of 18 years; and results, in general, in proportional representation. While the Constitution requires the election to result in PR in ‘general’, it does not specify the use of a closed-list PR system. Subsections 46(2) and 105(1)(a) grant discretionary power to Parliament to pass a law prescribing the electoral system to be used. This was framed in the Electoral Act. NPEs take place every five years in South Africa. Voters vote for a political party and not for individual candidates. If they are voting within the province they are registered in, voters receive two ballot papers: one for the National Assembly and the other for the provincial legislature. Those who are voting from outside their resident province or from outside the country are only permitted to vote in the national ballot. Any South African citizen in possession of a bar-coded identity document or smart ID may register as a voter, provided they are 18 years or older. Registered voters who are in prison and who live outside of the country may also vote in the election. A political party may contest an election if it is registered and has submitted a list of candidates. Parties may choose whether to register for national or provincial elections or both. They can also choose which provincial ballots to contest. According to the Electoral Act, parties must pay a deposit fee to contest elections, but the amount to be deposited for a party contesting a provincial election must be less than that of the National Assembly election. Votes are converted to seats through a quota formula that allocates seats to each party in proportion to its share of the vote. Any party that wins 0.25% of the vote can be represented in the National Assembly. This is the lowest entry threshold of any PR system. As stated previously, the electoral system is set out in Schedule 6 of the Constitution as part of the transitional arrangements. This suggests that the drafters of the Constitution did not expect it to be a permanent choice and merely postponed the

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finalisation of the electoral system until after the 1999 election. In March 2002, then Minister of Home Affairs Dr Mangosuthu Buthelezi established a task team, the ETT, to ‘draft the new electoral legislation required by the Constitution’ (ETT 2003: 1). The ETT was chaired by the late Dr Frederik van Zyl Slabbert, a former opposition politician of the Progressive Federal Party (a precursor to the DP and the current DA) who served in the House of Assembly from 1979 to 1986. The task team was mandated to ‘formulate the parameters of new electoral legislation and draft it in order to prepare for the scheduled National and Provincial elections of 2004 or any earlier election, should the need arise’ (ETT 2003: 1). The report was presented to Cabinet in January 2003. Following extensive consultations with political parties and civil society, the ETT arrived at two different views on whether the electoral system should be changed. The minority view was that the current system of closed-list PR should be retained unchanged and the majority view was that the system should be amended to allow for a greater measure of constituency representation. Both views were presented in the final report. The crux of the disagreement within the ETT was whether the advantages of changing the system outweighed the disadvantages of maintaining it, and vice versa. The majority recommended a mixed-member PR system that would divide the country into multimember constituencies within the current boundaries of the nine provinces. Constituencies would be divided along the boundaries of district councils and metropolitan councils. The boundaries would be the same for national, provincial and municipal elections; there would thus be no possibility of constituency boundaries transgressing provincial boundaries. The number of representatives per constituency would vary, according to registered voters, from three to seven for a national election. Three hundred members of the National Assembly would be elected from the constituencies and 100 members would be elected from a closed national list to restore overall proportionality. Ballot papers would bear the parties’ names, emblems and the leaders’ photographs, as it was believed that this would remove the risk of confusion about voting procedures. Even if the constituency and national ballots were separated, voters were familiar with multiple ballots from municipal elections. However, the ETT’s recommendations were not implemented, and the report was shelved without public discussion of its findings. During the ETT’s deliberations, in October 2002, the CC handed down a judgment declaring the constitutional validity of four Acts of Parliament, passed in June 2002, allowing elected representatives at national, provincial and local levels to leave the party under which they were elected in the previous elections to form a new party or join another existing party without losing their seats (Booysen 2006). Floor-crossing could be executed under particular conditions, such as if the group leaving made up at least 10% of the party’s elected representatives, and only in the second and fourth year of the electoral term between 1 and 15 September. The introduction of floor-crossing was highly contentious, because it was seen as benefiting larger parties at the expense of smaller ones. It was initially raised to 42

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allow the merger of the DP and the New National Party (the NNP, the successor of the NP) after the latter’s dramatic electoral decline in the 1999 elections.22 When the DP–NNP relationship broke down and the NNP merged with the ANC, the ANC used its parliamentary majority to pass the legislation. The ANC benefited the most from floor-crossing, with the party raising its proportion of representation in Parliament from 69.69% to 74.25% at some point between 2004 and 2009 (Booysen 2006). Floor-crossing thus contributed significantly to the ANC’s position as a dominant party (Smiles 2011). Despite the ANC benefiting from floor-crossing, it was a hugely unpopular practice among the party’s support base, who reflected the popular view that it was a subversion of the will of the people and of internal party democracy, because floor-crossers were often rewarded with high-ranking positions within the party. The ANC’s 2007 Polokwane conference therefore resolved to abolish floor-crossing, which was done in January 2009 through the passing of the Constitution Fourteenth Amendment Act of 2008 and the Constitution Fifteenth Amendment Act of 2008 (Smiles 2011). This discussion of the ETT and floor-crossing illustrates three important points about the debate on electoral reform in South Africa since 1994. First, as is to be expected, the debate has primarily been shaped by the interests of the main political parties, particularly the ANC as the dominant party in the system. The ETT’s recommendations did not suit the ANC’s interests, so the report was never taken seriously. Floor-crossing was only introduced when it served the ANC’s purposes in its merger with the NNP. Second, the debate on electoral reform reflects the tension between inclusivity and accountability in South African politics. This was a prominent consideration for the ETT, and ANC members eventually opposed floor-crossing because they perceived it as making elected officials less accountable to the party’s rank and file. Third, floor-crossing was legitimised by a judgment of the CC, which declared floor-crossing constitutionally valid in October 2002 and paved the way for constitutional amendments to allow it.23 The involvement of the courts in the debates on the electoral system is contentious, as will be discussed in the next section.24

The New Nation Movement judgment by the Constitutional Court On 11 June 2020, in New Nation Movement NPC and Others v President of the Republic of South Africa and Others,25 the CC ruled that the Electoral Act was unconstitutional to the extent that it prevents individuals from contesting NPEs. The case was an appeal from the Western Cape High Court brought by the NNM, Chantal Dawn Revell, GRO and Indigenous First Nation Advocacy SA PBO. These entities instituted an urgent application at the High Court in late 2018 and motivated that the Electoral Act was unconstitutional because it unjustifiably limits the right conferred by section 19(3)(b) of the Constitution – namely that ‘every adult citizen has the right … to stand for public office and, if elected, to hold office’ – by limiting the contesting of elections to political parties. In addition, some applicants argued

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that the Act violated their right to freedom of association as set out in section 18 of the Constitution. The NNM describes itself as ‘a non-partisan, all-inclusive People’s Movement’ that is ‘not a political party’, but rather ‘a network of like-minded South Africans’.26 This ‘network of like-minded South Africans’ joined forces with Ms Chantal Dawn Revell, a princess of the Korana Royal Household, a part of the Khoi people. She is a long-time activist for the recognition of First Nation Peoples in South Africa ‘as the original stewards of the land’.27 The Western Cape High Court dismissed the application on the grounds that section 19(3)(b) of the Constitution did not specify that ‘standing for public office must include standing … “as an independent candidate” as opposed to a member of a political party’.28 In addition, the High Court ruled that section 1(d) referred to a ‘multi-party system’, which indicates that the drafters of the Constitution anticipated political parties rather than individuals to contest elections. As Justice Madlanga expressed in the majority judgment of the CC, the High Court judgment can be summarised as follows: The nuts and bolts require that one must stand for public office through political parties. And they make no provision for independent candidates. Whether there should be a framework that caters for the participation of independent candidates is best left to Parliament, something that Parliament is currently seized with.29 The latter is a reference to the report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, which was submitted to Parliament in November 2017 and which recommended that Parliament initiate discussion on the ETT’s report (HLP 2017). As indicated, the NNM and others lodged an urgent appeal in the CC in April 2019, with the apparent intention of changing the electoral system before the May 2019 elections. The CC dismissed the claim of urgency and postponed the hearing of leave to appeal to 15 August 2019. In its judgment dated June 2020, the CC granted leave to appeal, upheld the appeal and set aside the order of the Western Cape High Court. There were three judgments delivered in respect of this case: the majority judgment, written by Justice Madlanga; a concurring judgment written by Justice Jaftha, which makes additional arguments on section 18; and a dissenting judgment by Justice Froneman, who was the only dissenting judge in the decision. The majority judgment, by Justice Madlanga, argues that although the founding provisions of the Constitution call for ‘a multi-party system of democratic government’, this does not indicate that the Constitution requires ‘an exclusively party-based proportional representation system’.30 According to Madlanga, the reference to multiparty democracy should be interpreted as an injunction that South Africa should never become a one-party state. It should not be interpreted as an exclusion of individual candidates from contesting elections. The majority of the CC

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argued that the rights in section 19 of the Constitution, headed ‘Political Rights’, are ‘so interconnected that they have to be read together’.31 With regard to section 19(1), the majority maintained that the right not to form or join a political party ‘is as much a political choice as is the choice to form or join a political party; and it must equally be deserving of protection’.32 Therefore, forcing an adult citizen to exercise their right to contest for public office in section 19(3)(b) by joining a political party violates the choice guaranteed in section 19(1) not to form or join a political party. Moreover, section 18, which states that ‘everyone has the right to freedom of association’, also includes the right of an individual not to associate. Adult citizens should therefore not be forced to join a political party in order to exercise their constitutional right to stand for public office in NPEs. Justice Madlanga highlighted the situation of Ms Revell, the second applicant in the case, who claimed that she was averse to forming or joining a political party because of her position ‘as a representative and leader of the Korana nation, a section of the Khoi and San people’. As a leader of her nation, she is reluctant to be ‘constrained by that kind of partisanship that comes with being a member of a political party’ because it makes one answerable to the party. According to Madlanga, ‘being free of those shackles will make Ms Revell directly answerable to her nation, not to a political party’.33 He recalled the case of United Democratic Movement v Speaker of the National Assembly and Others,34 which ruled that individual members of the National Assembly could vote in a secret ballot in the motion of no confidence against former president Jacob Zuma. Madlanga contended that ‘if all members of the National Assembly were free to vote as they pleased regardless of how politically sensitive an issue might be and without any risk of reprisals from their political parties, litigation on this issue would not have been necessary’.35 It was therefore reasonable for Ms Revell to want to be an MP without the pressure and constraints of party politics. Importantly, the CC has given Parliament 24 months from the date of the judgment to amend the Electoral Act to allow individuals to contest the next NPEs, due to be held in 2024. This is intended to provide another 24 months for the Electoral Commission of South Africa (IEC) to update its processes and systems for the new electoral system. In keeping with sections 46(2) and 105(1)(a) of the Constitution, which grant discretionary powers to Parliament to prescribe electoral systems, the CC has not specified which system Parliament must choose. The main constraint, for whatever system is chosen, is that it ‘results, in general, in proportional representation’ (section 46[d] of the Constitution). Therefore, the Electoral Act is likely to be amended to feature a mixed system with elements of a constituency and a PR system, similar to our local government system. Parliament may want to consider a recall provision to allow a constituency to recall its representative between elections. This will ensure political party and individual representatives are made to account for their participation in and contributions to their constituencies.

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Conclusions Given the challenges of alternatives to electoral reform, a long, complex process lies ahead. A logical next step is for Parliament to establish an ad hoc multiparty committee to amend the Electoral Act, with public submissions and public hearings before the committee deliberates on how to change the Act. Parties currently represented in Parliament may try to influence the process to increase their chances of being re-elected in 2024. Changes to the Electoral Act may have implications for other legislation, including the Political Party Funding Act (No. 6 of 2018) and the Municipal Demarcation Act (No. 27 of 1998), which may prolong the process. South Africans who see the CC judgment as an opportunity for greater individual accountability in our politics may be disappointed. No electoral system can fully guarantee democratic accountability. Unfortunately, real accountability does not emanate purely from a voting system, but rather develops from an inclusive political culture. All indications seem to suggest that as South Africans, in our rich diversity, we need to have a broader conversation about our bifurcated state and neoliberal representative democracy. A valid question is: Do the internal dynamics of political parties promote democracy? We also need to interrogate the influence and flow of finances in our democracy, because individual candidates can also be ‘captured’. There are no easy solutions for South Africa’s democratic conundrum. As the late Nigerian political scientist Claude Ake argued at the beginning of the third wave of democratisation in Africa, for democracy in Africa to succeed it needs to be based on indigenous understandings of representation and accountability (1993). This is different from the crude extension of authoritarian traditional institutions; rather, it is a recognition of the value of endogeneity in informing our thinking about governance (Adesina 2008). A central thread in this edition of State of the Nation, as the editors have pointed out in Chapter 1, is the kind of society we wish to ultimately reimagine – one free from inequalities and poverty, which can be made possible by the development of an ethical and caring state. If, as we have argued, electoral reform is meaningful, it will set us on a course to deepening our democratic project. We can start by listening to the majority of South Africans who are outside the formal system, as they are the greatest critics of the democratic system. A key issue remains their understanding of democracy and how they would like the current system to be reformed to enable their full and equal participation.36 As Ake claimed, if ‘African democracy follows the line of least resistance to Western liberalism, it will achieve only the democracy of alienation’ (1993: 244). Our challenge is to overcome the democracy of alienation to achieve a democracy that truly grants power and freedom to the people and that centralises a care ethics. This will ensure that choices are made available to the electorate so that they can choose leaders who will represent their interests. In turn, this will contribute to ensuring a capable state that deepens, strengthens and enhances democratic participation and representation.

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Notes 1 See, for example, Alence and Pitcher (2019), Chipkin et al. (2018), February (2018), McKinley (2017), Pillay (2014) and Suttner (2015). 2 See Renwick (2010). 3 February J, SA electoral system lacks accountability, EWN, 30 November 2017. Accessed August 2020, https://ewn.co.za/2017/11/30/opinion-judith-february-sa-electoral-system-hasaccountability-deficit; Sibalukhulu N, SA’s electoral system fails the people, Mail & Guardian, 20 April 2012. Accessed August 2020, https://mg.co.za/article/2012-04-20-sas-electoralsystem-fails-the-people/ 4 See Basson and Du Toit (2017), Koelble (2018), Kotze (2019), Mangcu (2018), Mathekga (2018), Myburgh (2017), Pillay (2014) and Renwick (2018). 5 February J, SA electoral system lacks accountability, EWN, 30 November 2017. Accessed August 2020, https://ewn.co.za/2017/11/30/opinion-judith-february-sa-electoral-system-hasaccountability-deficit 6 See Duverger (1959) and Lijphart (1999). 7 Mazibuko L, South Africa needs electoral reform that meets the needs of a changing nation, News24, 9 March 2020. Accessed August 2020, https://www.news24.com/news24/columnists/ guestcolumn/lindiwe-mazibuko-south-africa-needs-electoral-reform-that-meets-the-needsof-a-changing-nation-20200309; Sibalukhulu N, SA’s electoral system fails the people, Mail & Guardian, 20 April 2012. Accessed August 2020, https://mg.co.za/article/2012-04-20-saselectoral-system-fails-the-people/ 8 According to the website of the New Nation Movement (https://newnation.org.za/), it is a non-partisan ‘people’s movement’. It is not a political party, but rather ‘a network of likeminded South Africans from all walks of life, irrespective of race or language; religion, belief, gender or social standing, who speak with one voice and objective; that is, to exercise their collective influence to build a better South Africa’. 9 New Nation Movement NPC and Others v President of the Republic of South Africa and Others (hereafter New Nation Movement NPC and Others) [2020] ZACC 11. 10 With regard to South Africa, see Fernandez (2020). For other countries, see Hertling and Kugelberg (2018), whose work is focused on European cities, and Achen and Bartels (2019) and Neblo et al. (2018), for work focused on the USA. 11 See, for example, Innerarity (2019) and Lisi et al. (2020). 12 See, for example, Bieber (2020), Bunce et al. (2010), Gibson (2012), Moghaddam (2019), Schuetze (2019) and V-Dem Institute (2019). 13 See Badiou and Gauchet (2016), Mattes (2019: 1) and Rosenblum and Muirhead (2016). 14 Mnisi-Weeks S, South Africa still has a long way to go to settle traditional leadership challenges, The Conversation Africa, 23 June 2019. Accessed August 2020, https:// theconversation.com/south-africa-still-has-a-long-way-to-go-to-settle-traditionalleadership-challenges-119009 15 Pikoli Z, Traditional Courts Bill hearings kick off in Gauteng, Daily Maverick, 20 February 2020. Accessed August 2020, https://www.dailymaverick.co.za/article/2020-02-20-traditionalcourts-bill-hearings-kick-off-in-gauteng/

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16 See Ballard et al (2006), Beinaert and Dawson (2016), Duncan (2016), Paret et al. (2017), Powers (2020) and Robins (2008). 17 Friedman S, Flushed with their own importance, political elites ignore urgent public issues. Business Day, 24 July 2019. Accessed August 2020, https://www.businesslive.co.za/bd/ opinion/columnists/2019-07-24-steven-friedman-flushed-with-their-own-importancepolitical-elites-ignore-urgent-public-issues/ 18 See, for example, Ezrow (2010), Farrell (2011), Herron et al. (2018) and Moser and Scheiner (2012). 19 Media Hack Collective, South Africa’s leadership in numbers, Media Hack, 10 June 2019. Accessed 11 August 2020, http://mediahack.co.za/sa-politics-numbers/ 20 See February J, SA electoral system lacks accountability, EWN, 30 November 2017. Accessed August 2020, https://ewn.co.za/2017/11/30/opinion-judith-february-sa-electoral-systemhas-accountability-deficit; Gumede W, South Africa in desperate need of electoral overhaul, Democracy Works Foundation, 30 June 2020. Accessed August 2020, https://democracyworks.org.za/south-africa-in-desperate-need-of-electoral-overhaul/; see also Forum for Public Dialogue (2017) and Hamilton (2014). 21 See, for example, Przeworski et al. (1999) and Strøm et al. (2006). 22 See Booysen (2006), Hoeane (2008), Masemola (2007) and McLaughlin (2014). 23 United Democratic Movement v President of the RSA (1) 2002 (11) BCLR 1179 (CC); United Democratic Movement v President of the Republic of South Africa and Others (African Christian Democratic Party and Others Intervening; Institute for Democracy in South Africa and Another as Amici Curiae) (No. 2) 2003 (1) SA 495 (CC). 24 See Le Roux and Davis (2019) for a detailed historical discussion of this phenomenon. 25 [2020] ZACC 11. 26 See https://newnation.org.za/ 27 Etheridge J, Court hears application regarding independent candidates is an ‘extraordinary attempt to imperil the elections’, News24, 27 March 2019. Accessed August 2020, https://www.news24.com/news24/southafrica/news/court-hears-application-regardingindependent-candidates-is-an-extraordinary-attempt-to-imperil-the-elections-20190327 28 New Nation Movement PPC and Others v President of the Republic of South Africa and Others (17223/18) [2019] ZAWCHC 43; 2019 (5) SA 533 (WCC) (17 April 2019) at para. 13. 29 New Nation Movement NPC and Others at para. 5. 30 New Nation Movement NPC and Others at para. 71. 31 New Nation Movement NPC and Others at para. 16. 32 New Nation Movement NPC and Others at para. 17. 33 New Nation Movement NPC and Others at para. 53. 34 [2017] ZACC 21. 35 New Nation Movement NPC and Others at para. 57. 36 See Brooks et al. (2019).

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References Achen CH & Bartels LM (2019) Democracy for realists: Why elections do not produce responsive government. Princeton: Princeton University Press Adesina JO (2008) Archie Mafeje and the pursuit of endogeny: Against alterity and extroversion. Africa Development 33(4): 133–152. https://doi.org/10.4314/ad.v33i4.57349 Ake C (1993) The unique case of African democracy. International Affairs 69(2): 239–244. https://doi.org/10.2307/2621592 Alence R & Pitcher A (2019) Resisting state capture in South Africa. Journal of Democracy 30(4): 5–19. https://doi.org/10.1353/jod.2019.0065 Badiou A & Gauchet M (2016) What is to be done? A dialogue on communism, capitalism and the future of democracy (trans. S Spitzer). Cambridge, UK: Polity Press Ballard R, Habib A & Valodia I (Eds) (2006) Voices of protest: Social movements in post-apartheid South Africa. Pietermaritzburg: University of KwaZulu-Natal Press Basson A & Du Toit P (2017) Enemy of the people: How Jacob Zuma stole South Africa and how people fought back. Cape Town: Jonathan Ball Beinaert W & Dawson MC (Eds) (2016) Popular politics and resistance movements in South Africa. Johannesburg: Wits University Press Bieber F (2020) The rise of authoritarianism in the western Balkans. Cham: Palgrave Macmillan Booysen S (2006) The will of the parties versus the will of the people? Defections, elections and alliances in South Africa. Party Politics 12(6): 727–746. https://doi.org/10.1177/1354068806068598 Brooks H, Ngwane T & Runciman C (2019) Decolonising and retheorizing the meaning of democracy: A South African perspective. The Sociological Review 68(1): 17–32. https://doi.org/10.1177/0038026119878097 Bunce V, McFaul M & Stoner-Weiss K (Eds) (2010) Democracy and authoritarianism in the postcommunist world. Cambridge, UK: Cambridge University Press Chipkin I, Swilling M, Bhorat H, Qobo M, Duma S & Mondi L (2018) Shadow state: The politics of state capture. Johannesburg: Wits University Press Duncan J (2016) Protest nation: The right to protest in South Africa. Pietermaritzburg: University of KwaZulu-Natal Press Duverger M (1959) Political parties: Their organization and activity in the modern state (trans. B North & R North). London: Methuen ETT (Electoral Task Team) (2003) Report of the Electoral Task Team. January 2003. Cape Town: ETT Ezrow L (2010) Linking citizens and parties: How electoral systems matter for political representation. Oxford: Oxford University Press Farrell DM (2011) Electoral systems: A comparative introduction. London: Red Globe Press February J (2018) Turning and turning: Exploring the complexities of South Africa’s democracy. Johannesburg: Picador Africa Fernandez S (2020) Representative bureaucracy and performance: Public service transformation in South Africa. Cham: Palgrave Macmillan

49

SoN2021.indb 49

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E T H I C S , P O L I T I C S , I N E Q UA L I T Y: N E W D I R E C T I O N S

Ferree K (2018) Electoral systems in context: South Africa. In ES Herron, RJ Pekkanen & MS Shugart (Eds) The Oxford handbook of electoral systems. New York: Oxford University Press Forum for Public Dialogue (2017) Electoral systems and accountability: Challenges and considerations for South Africa. Johannesburg: KMM Review Publishing Company Friedman S (2018) Power in action. Johannesburg: Wits University Press Gasa N (2011) The Traditional Courts Bill: A silent coup? South African Crime Quarterly 35: 23–29. https://doi.org/10.17159/2413-3108/2011/v0i35a866 GenderLinks (2018) 50/50 Policy brief: Madagascar. Johannesburg: GenderLinks Gibson EL (2012) Boundary control: Subnational authoritarianism in federal democracies. New York: Cambridge University Press Gouws A (2019) The gender gap and the 2019 elections. In C Schultz-Hertzenburg & R Southall (Eds) Election 2019: Change and stability in South Africa’s democracy. Auckland Park: Jacana Media Hamilton L (2014) Are South Africans free? London: Bloomsbury Herron ES, Pekkanen RJ & Shugart MS (Eds) (2018) The Oxford handbook of electoral systems. New York: Oxford University Press Hertling N & Kugelberg C (Eds) (2018) Local participatory governance and representative democracy: Institutional dilemmas in European cities. New York: Routledge Hicks J, Morna CL & Fonnah M (2016) Gender in the 2016 South African local government elections. Johannesburg: GenderLinks. Accessed August 2020, https://genderlinks.org. za/wp-content/uploads/2016/12/Gender-and-Local-elections-2016-ReportFINAL_ jhmfclm_092016f.pdf HLP (High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change) (2017) Report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change. November 2017. Accessed 10 October 2020, https://www.parliament.gov.za/high-level-panel Hoeane T (2008) Floor crossing in South Africa: Entrenching or undermining democracy? Politeia 27(2): 70–88 Hoffman P (2012) Democracy and accountability: Quo vadis South Africa? In W Attwell, L Bank, P Naidoo, P Bond, I Buccus et al. (Eds) New South African review 2: New paths, old compromises. Johannesburg: Wits University Press IEC (Electoral Commission of South Africa) (2019) 2019 National and provincial elections report. Pretoria: IEC. Accessed 11 November 2020, http://www.elections.org.za/content/ Documents/Election-reports/National-and-Provincial-Elections/2019-National-andProvincial-Elections-Report-(PDF)/ Innerarity D (2019) Politics in the times of indignation: The crisis of representative democracy (trans. S Kingery). London: Bloomsbury Academic James W & Hadland A (2003) Shared aspirations: The imperative of accountability in South Africa’s electoral system. In Electoral models for South Africa: Reflections and options. Seminar Report: Electoral Task Team Review Roundtable 9–10 September 2002. Johannesburg: Konrad Adenauer Stiftung

50

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Kadima D (2003) Choosing an electoral system: Alternatives for the post-war Democratic Republic of Congo. Journal of African Elections 2(1): 33–48 Koelble TA (2018) Globalisation and governmentality in the post-colony: South Africa under Jacob Zuma. WZB Discussion Paper No. SP V 2018-103, Wissenschaftszentrum Berlin für Sozialforschung Kotze D (2019) Election of the national president: South Africa’s approach and its implications for presidentialism. Politikon 46(4): 443–461. https://doi.org/10.1080/02589346.2019.1678273 Le Roux M & Davis D (2019) Lawfare: Judging politics in South Africa. Cape Town: Jonathan Ball Li Y (2017) Electoral system effects re-examined using the largest vote share variable. Democratisation 25(1): 58–77. https://doi.org/10.1080/13510347.2017.1316263 Lijphart A (1998) South African democracy: Majoritarian or consociational? Democratisation 5(4): 144–150 Lijphart A (1999) Patterns of democracy: Government forms and performance in thirty-six democracies. New Haven: Yale University Press Lisi M, Freire A & Tsatsanis E (Eds) (2020) Political representation and citizenship in Portugal: From crisis to renewal. Lanham: Lexington Books Lodge T (2003) How the South African electoral system was negotiated. Journal of African Elections 2(1): 71–76. https://doi.org/10.20940/jae/2003/v2i1a6 Madlingozi T (2007) Post-apartheid social movements and the quest for the elusive ‘new’ South Africa. Journal of Law and Society 34(1): 77–98. https://doi.org/10.1111/j.14676478.2007.00383.x Makhunga L (2016) Elite patriarchal bargaining in post-genocide Rwanda and post-apartheid South Africa: Women political elites and post-transition African parliaments. PhD thesis, University of the Witwatersrand Mamdani M (2017, 2nd edition) Citizen and subject: Contemporary Africa and the legacy of late colonialism. Johannesburg: Wits University Press; Kampala: Makerere Institute of Social Research Mangcu X (2018) A fresh start for South Africa? Current History 177(799): 194–196. https://doi.org/10.1525/curh.2018.117.799.194 Masemola NKP (2007) Floor-crossing and its political consequences in South Africa. EISA Occasional Paper No. 44, June 2007, Johannesburg Massicotte L & Blais A (1999) Mixed electoral systems: Conceptual and empirical survey. Electoral Studies 18: 33–162. https://doi.org/10.1016/s0261-3794(98)00063-8 Mathekga R (2018) Ramaphosa’s turn: Can he save South Africa? Cape Town: Tafelberg Matlosa K (2004) Electoral systems, constitutionalism and conflict management in southern Africa. Journal of Conflict Resolution 4(2): 11–53. https://doi.org/10.4314/ajcr.v4i2.39377 Mattes R (2019) Democracy in Africa: Demand, supply, and the ‘dissatisfied democrat’. Afrobarometer Policy Paper No. 54, February 2019, Afrobarometer. Coordinated by the Ghana Centre for Democratic Development, Accra Mbete S (2015) The Economic Freedom Fighters: South Africa’s turn towards populism? Journal of African Elections 14(1): 35–59. https://doi.org/10.20940/jae/2015/v14i1a3

51

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McKinley D (2017) South Africa’s corporatised liberation: A critical analysis of the ANC in power. Auckland Park: Jacana Media McLaughlin ES (2014) Did floor crossing alienate South African voters? Evidence from municipal legislators. Politikon 41(2): 289–310. https://doi.org/10.1080/02589346.2014.905261 Moghaddam FM (2019) Threat to democracy: The appeal of authoritarianism in an age of uncertainty. Washington, DC: American Psychological Association Moser RG & Scheiner E (2012) Electoral systems and political context: How the effects of rules vary across new and established democracies. Cambridge, UK: Cambridge University Press Myburgh PL (2017) The republic of Gupta: A story of state capture. Cape Town: Penguin Neblo MA, Esterling KM & Lazer DM (2018) Politics with the people: Building a directly representative democracy. Cambridge, UK: Cambridge University Press Ntsebeza L (2005) Rural governance and citizenship in post-1994 South Africa: Democracy compromised? In J Daniel, R Southall & J Lutchman (Eds) State of the Nation South Africa: 2004–2005. Cape Town: HSRC Press Paret M, Runciman C & Sinwell L (Eds) (2017) Southern resistance in critical perspective: The politics of protesting South Africa’s contentious democracy. London: Routledge Pillay S (2014) Development corruption in South Africa: Governance matters. New York: Palgrave Macmillan Powers T (2020) Sustaining life: AIDS activism in South Africa. Philadelphia: University of Pennsylvania Press Przeworski A, Stokes SC & Manin B (Eds) (1999) Democracy, accountability and representation. Cambridge, UK: Cambridge University Press Reddy T (2015) South Africa: Settler colonialism and the failures of liberal democracy. London: Zed Books Renwick A (2010) The politics of electoral reform: Changing the rules of democracy. Cambridge, UK: Cambridge University Press Renwick R (2018) How to steal a country: State capture and the hopes for the future in South Africa. London: Biteback Publishing Robins SL (2008) From revolution to rights in South Africa: Social movements, NGOs and popular politics after apartheid. London: James Currey Robinson J (2020) Fragile gains: South Africa’s democracy under the spotlight. Journal of Southern African Studies 46(4): 793–808. https://doi.org/10.1080/03057070.2020.1787669 Rosenblum NL & Muirhead R (2016) A lot of people are saying: The new conspiracism and the assault on democracy. Princeton: Princeton University Press Sadie Y (2017) Women, the electoral system and political parties. In H Thuynsma (Ed.) Political parties in South Africa: Do they undermine or underpin democracy? Pretoria: African Institute of South Africa Schuetze B (2019) Promoting democracy, reinforcing authoritarianism: USA and European policy in Jordan. New York: Cambridge University Press Schulz-Herzenberg C & Southall R (2019) Introduction: The South African elections of 2019. In C Schulz-Herzenberg & R Southall (Eds) Election 2019: Change and stability. Auckland Park: Jacana Media 52

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Smiles J (2011) Floor-crossing in South Africa: A controversial democratic process. Insight on Africa 3(2): 159–175 Southern N (2015) The Government of National Unity and the demise of the National Party in post-settlement South Africa. Politikon 42(2): 235–254. https://doi.org/10.1080/02589346.20 15.1041672 Strøm K, Müller WC & Bergman T (Eds) (2006) Delegation and accountability in parliamentary democracies. Oxford: Oxford University Press Suttner R (2015) Recovering democracy in South Africa. Auckland Park: Jacana Media Tracey-Temba L (2016) Do you want my vote? Understanding the factors that influence voting among young South Africans. Institute for Security Studies (ISS) Monograph No. 193, 26 July 2016, Pretoria Tracey-Temba L (2018) Damned to desperation: The gendered nature of disruptive politics among South African youth. ISS Southern Africa Report No. 19, 6 December 2018, Pretoria Urbinati N (2006) Representative democracy: Principles and genealogy. Chicago: University of Chicago Press Urbinati N (2011) Representative democracy and its critics. In S Alonso, J Keane & W Merkel (Eds) The future of representative democracy. Cambridge, UK: Cambridge University Press V-Dem (Varieties of Democracy) Institute (2019) Democracy facing global challenges: V-Dem annual democracy report 2019, University of Gothenburg. Accessed August 2020, https://www.v-dem.net/media/filer_public/99/de/99dedd73-f8bc-484c-8b91-44ba601b6e6b/ v-dem_democracy_report_2019.pdf

Cases New Nation Movement NPC and Others v President of the Republic of South Africa and Others [2020] ZACC 11 New Nation Movement PPC and Others v President of the Republic of South Africa and Others (17223/18) [2019] ZAWCHC 43; 2019 (5) SA 533 (WCC) (17 April 2019) United Democratic Movement v President of the RSA (1) 2002 (11) BCLR 1179 (CC) United Democratic Movement v President of the Republic of South Africa and Others (African Christian Democratic Party and Others Intervening; Institute for Democracy in South Africa and Another as Amici Curiae) (No. 2) 2003 (1) SA 495 (CC) United Democratic Movement v Speaker of the National Assembly and Others [2017] ZACC 21

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3

Thinking ethically about women, power and land in South Africa Narnia Bohler-Muller, Nokuthula Olorunju and Karabo Magagane

In a world of possibility for us all, our personal visions help lay the groundwork for political action. – Audre Lorde, Sister Outsider

Pandora opened a box filled with evils, Eve ate forbidden fruit and Joan of Arc wore men’s clothing. Stretching far back into the past, the roles of women have been imbued with equal measures of mystery and notoriety. These stories reflect the idea that although women could (and do) change the tides of history, the mere fact that they carry the title of ‘woman’ detracts from their achievements or excludes them from spaces where their voices and stories matter. This is the case even as we write. In February 2018, the South African Parliament endorsed a motion to begin an investigation into the expropriation of land without compensation. This has since become known as the ‘section 25 debate’, after the constitutional property clause in the Constitution of the Republic of South Africa, 1996. A Joint Constitutional Review Committee was established with a mandate to propose constitutional amendments to South Africa’s land tenure regime.1 Following public hearings and tens of thousands of submissions by stakeholders, in December 2018 Parliament decided to adopt the report by the Committee on the review of section 25. The Committee recommended that section 25 must be amended to make explicit that which is implicit in the Constitution, with regards to Expropriation of Land without Compensation as a legitimate option for Land Reform so as to address the historic wrongs caused by the arbitrary dispossession of land and, in so doing, ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programs. (Parliament 2018: 34) On 25 July 2019, the National Assembly convened a multiparty ad hoc committee to consider new legislation, with a deadline set for March 2020. This would mean a substantial amendment and/or clarification of the meaning of section 25.2 This motion has direct implications for South Africans who have been historically disenfranchised, dispossessed and oppressed based on their race, class and gender. The current epoch provides an opportunity to reflect on legislative land reform pre- and post-1994, the role of customary law, and how the courts have dealt with land and gender over the past 25 years. Albie Sachs, a former Constitutional Court (CC) justice, comments in the report of the Ad Hoc Committee to Amend 54

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Section 25 of the Constitution that the concept of land ownership by a single person is a foreign concept in African culture. He argues that stewardship is a more acceptable form of ownership (Ad Hoc Committee 2019). Perhaps the concepts of stewardship and ubuntu are not too far removed from one another. Viewed through the lens of ubuntu – which carries ‘key values of human dignity, respect, inclusivity, compassion and concern for others and honesty’ (Bohler-Muller 2007: 79) – sharing the land and communal living would mean that men and women could be equal stewards of the land. The section 25 debate seems the perfect platform for heeding women’s voices. The November 2017 land audit report by the Department of Rural Development and Land Reform (DRDLR) recorded that individual private ownership of farms and agricultural holdings stands at 13% for women, in stark comparison to the 72% ownership by men (DRDLR 2017). This audit did not take into consideration the land under tribal authorities, where communities only receive permits to occupy and do not have full ownership of the land. Nokukhanya Jili and Mfundu Masuku (2017) and Mokgadi Molope (2018), along with many other authors, have outlined the existent land reform laws and policies which are geared towards addressing past injustices, such as the Restitution of Land Rights Act (No. 22 of 1994) and the land reform programme, initiated after the first democratic elections. These laws and policies are aimed at former black landowners who were dispossessed by the Natives Land Act (No. 27 of 1913) and are intended to address historical injustices and provide those previously disadvantaged, ‘including women in rural areas and the poor, with access to land for residential and productive purposes’ (Jili & Masuku 2017: 552). However, it could be argued that given the current circumstances, very little progress has been made. The failure of the existent policies and laws can largely be attributed to government’s inability to take the socioeconomic restrictions that prevent women’s access to ownership or even possession of land seriously enough. In addition, the interventions by the courts have been ad hoc and ineffectual at grassroots level. This chapter addresses questions of voice, ethics and power in the context of women and land through three lenses: legal, feminist and ethical. In combining these lenses in innovative ways, we refer to the famous imperative by Audre Lorde, namely that one cannot dismantle the master’s house with the master’s tools (2007/1984). Lorde’s aim was to introduce an ethical principle that would assist us in overcoming the status quo, namely that we cannot disrupt oppression using the logic that justifies it: ‘Women of today are still being called upon to stretch across the gap of male ignorance and to educate men as to our existence and our needs. This is an old and primary tool of all oppressors to keep the oppressed occupied with the master’s concerns’ (2007/1984: 3). This chapter is less concerned with the master and more with the voices of the oppressed. The discussion therefore explores how to listen to the voices of the oppressed, particularly rural women, within the context of land and land reform. We wish to focus on lived experiences and the voices of those who are so often excluded from these conversations. 55

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A history of dispossession For men and women alike, land is the foundation for security, shelter, and livelihood, supports women’s dignity and creates pathways to empowerment and economic opportunity. For women, land truly is a gateway right – without it, efforts to improve the basic rights and well-being of all women will continue to be hampered. – Karol Boudreaux3

When discussing the issue of land from ethical and feminist perspectives, one must be clear about what these lenses bring to our understanding of the subject of women and land. The aim here is to advocate the practical implementation of values, principles and obligations that already exist in this society. One presupposes that the Constitution is an existing mechanism that encompasses both an ethical and feminist lens, along with the thread of ubuntu.4 Without becoming mired in the intricacies of gender binaries and the ‘simplistic conceptualizations of woman as a category’, the discourse on women and land can benefit from a feminist ethics, as it seeks to address the ways in which women are perceived and treated under patriarchy (Norlock 2019). The feminist lens used in this chapter draws on Virginia Held’s ethics of care (2006), which involves a collective societal responsibility to be attentive to the needs of women in society, acknowledging the capabilities of women and respecting the vital role of women in land ownership and usage. Put simply, it is a lens that uncovers oppressive norms and practices that continue to pervade society, harming women and hampering their wellbeing. The damaging effects of patriarchal practices on land ownership and the security of women are evident (Nicolaides 2015; Norlock 2019). Furthermore, it is important to highlight the idea of ubuntu as an invisible thread binding the abovementioned lenses together. Ubuntu has been described by Drucilla Cornell and Karin van Marle as ‘a philosophy on how human beings are intertwined in a world of ethical relations from the moment they are born’ (2015: 2). It conveys the idea that humans do not exist independently; it points to inherent moral values and principles, or even the obligation to treat each other equally and with care (BohlerMuller 2007). It is also, as mentioned, part of the ethos of the Constitution. However, in terms of women and land rights, one must question whether this encompassing ethos is understood, interpreted and implemented to its full extent and potential. It is essential to note that the issue of land is also a question of power (Nicolaides 2015: 202–207). The inclusion of the female voice should not have to be a conscious decision; the female voice should be able to raise opinions, make comments and bring forth ideas as a matter of course. Everyone should be treated equally, with dignity, and have the freedom to choose their fate. The very nature of patriarchy, ingrained in the origins of land appropriation and later transferred into land redistribution, should be dismantled. It does not help to identify the symptoms of the ‘disease’; one must actively take measures to cure the disease – if possible – or remove the cause entirely.

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T hinkin g ethically about women , power and land in S outh A frica

Prior to the enactment of the Communal Land Rights Act (No. 11 of 2004) (CLaRA), consultations were held with rural communities concerning this legislation. Aninka Claassens and Ben Cousins provide a descriptive account of the problems encountered by rural women at the time (2008). They recount widows facing eviction from their marital homes after the death of their husbands, divorced women facing eviction after being scorned by their blood relatives, and women being evicted from their homes by their brothers after the death of their parents, based on an absolute right of succession (primogeniture). Land was treated as the property of males and women had no rights to the land. Consequently, traditional leaders were reluctant to allocate land to single women. With regard to participation, Claassens and Cousins relate that women were excluded from traditional council meetings and ignored when they attempted to make any input. The decisions of tribal courts, which consisted of mostly elderly men with the authority to decide on issues of land and family disputes, were perceived to favour men rather than women (2008: 156). These concerns were noted in a society almost 10 years into a constitutional democracy, a society in which archaic, patriarchal and disturbingly discriminatory and unethical practices remain evident. Essentially, women lack adequate access to land as a form of security. This research illustrates the multiple challenges that rural women face as they tread a fine line between patriarchal customary laws and legislation that aims to redress historical injustices but often falls short. The caveat is that the law has its limits – but it also has its place.

The legal framework pre-1994 Not only did discriminatory laws and practices undermine the legal status of women’s land rights; they altered the balance of power between men and women within the family. Aninka Claassens and Ben Cousins, Land, Power & Custom

It would be difficult to narrate South Africa’s history without an interrogation of the patriarchal legal framework that existed during apartheid with the aim of perpetuating a racist and sexist order. Legislation, resolutions, proclamations and ordinances played a key role in legitimising land dispossession and shaping the social, economic and political discourse of the country. This is especially the case since land, voting rights and the right to self-determination have always been intertwined. It is important to note that women were greater casualties of discriminatory laws owing to the increased vulnerabilities that arise at the intersection of race, gender and class. These vulnerabilities render them legally and financially insecure and thus more dependent on men (Claasens & Cousins 2008). In apartheid South Africa, women were left powerless to influence the dynamics of land tenure and security on any level. Land dispossession laws date back as far as the 1800s. The following are but a few examples (Warikandwa & Nhemachena 2017: 343–345): • According to Resolution 159 of 1855, anyone who was not a burgher (citizen) was prohibited from owning land.

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• The Natives Land Act confined black South Africans to 7% of the land. They could not buy or rent land in 93% of the territory of South Africa. • The Native (Urban Areas) Act (No. 21 of 1923) established the creation of ‘locations’ and controlled the influx of black South Africans into urban areas. • The Black Administration Act (No. 38 of 1927) (BAA) aimed to control and manage black persons’ affairs. • The Group Areas Act (No. 41 of 1950) established residential areas based on race. • The Bantu Authorities Act (No. 68 of 1951) established tribal authorities who became responsible for the allocation of land. • The Bantu Laws Amendment Act (No. 42 of 1964) gave the government authority to remove any African(s) from any town or white farming area at any time. Prior to its amendment and renaming, the Native Administrative Act (No. 38 of 1927), in section 11(3)(b), stated: ‘A native woman who is a partner in a customary union and who is living with her husband, shall be deemed a minor and her husband shall be deemed to be her guardian.’ This effectively barred black women from being active participants in the economy. In addition, the law of primogeniture – which provides for inheritance by, usually, the eldest male child – has been one of the key drivers of discrimination against women and is still enforced in many traditional communities across the world (Pauls 2010). In South Africa, the exclusion of women from economic activity and self-determination has shaped post-democratic patterns of land ownership. Some of the roots of the problematic relationship between women and land, and the correlated land and power dynamics, stem from customary law, customary marriage and the view of women’s rights being secondary to those of men: Racially discriminatory laws severely undermined the status of women’s rights to land and their security of tenure. Such laws ignored the strong and specific rights of women to parts of the family land, vested family land exclusively in the male household heads, and prohibited women from owning and acquiring land. (Claassens & Cousins 2008: 167–168) During apartheid, legislation, along with common law and customary law, had a significant impact on the spatial distribution of communal and rural land, because only white communities could lawfully own land. In addition, women of all races remained in the background in critical determinations involving education, agriculture and land use at community and national level (Jili & Masuku 2017). It is worth bearing in mind that the customary law of South Africans was ‘annexed’, politicised and placed at the service of colonial and, subsequently, apartheid governments through the codification of what was a ‘living’ law. Accordingly, the contemporary constitutional incorporation of customary law has been a complex process, due to the twin objectives of redeeming customary law and ensuring its compliance with the Constitution.

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After the dawn of democracy: Law, policy and practice Globally women own less land and have less secure rights over land than men. Women make up on average less than 20 percent of the world’s landholders, but make up an estimated 43 percent of the agricultural labour force. More than 400 million women work in agriculture. In sub-Saharan Africa and South Asia, 60 to 70 percent of employed women work in agriculture. Yet despite women’s crucial role in agriculture, food production, and land-based livelihood, there is no consistent national or global data on the full scope of women’s land rights or access to land to enable them to monitor and enforce their rights. – Alda Facio, Insecure Land Rights for Women

The policy framework Women’s equal rights to land and property are grounded in international human rights instruments, including the 1948 UN Universal Declaration of Human Rights (UDHR) (UN 1948), the 1966 UN International Covenant on Economic, Social and Cultural Rights (ICESCR) (UN 1966b), the 1966 UN International Covenant on Civil and Political Rights (ICCPR) (UN 1966a) and the 1981 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (UN 1981). Further, the 2007 UN Declaration on the Rights of Indigenous Peoples; the 2012 Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, by the Food and Agricultural Organization (FAO); and the 1995 World Conference on Women’s Beijing Declaration and Platform of Action all stress the need to achieve equality in the enjoyment of land and property rights. Women have the right to equality in the enjoyment of all their rights, including the right to access, use, inherit, control and own land. In 2016, the CEDAW Committee issued General Recommendation No. 34 on the Rights of Rural Women, in which it qualified ‘rural women’s rights to land, natural resources, including water, seeds, forestry, as well as fisheries, as fundamental human rights’ (UN CEDAW 2016: 16). Moreover, of the seven aspirations of Agenda 2063 of the African Union (AU), the sixth speaks to ‘an Africa whose development is people-driven, relying on the potential of African people, especially its women and youth’ (AU 2015: 12), which is largely similar to the UN’s Sustainable Development Goal (SDG) 5. This aspiration aims at full equality in all spheres of life, which would involve addressing obstacles faced by women in owning/inheriting property and accessing productive assets. The target is that 90% of rural women in Africa should have access to assets such as land, credit and financial services by 2025, with a focus on enhancing the role of women in agriculture in order to increase agricultural productivity. Of note is the acknowledgement that the continued monopoly of power by male political elites, lack of political will, socioeconomic challenges … as well as patriarchal traditions and beliefs continue to limit the formal and meaningful involvement of women in governance, peace, and security and development processes. 59

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The continent cannot reach its ambitious goals … while it limits a dynamic segment of its society. (AU 2015: 86) In addition, the AU established the African Land Policy Centre (previously the Land Policy Initiative) with a steering committee to assist member states to implement and review their land policies and address land challenges. One of the objectives of the Policy Centre is to raise awareness relating to land policy formulation, with an emphasis on women’s land rights. The AU’s target of access to assets for 90% of rural women by 2025 may seem overly ambitious in light of the socioeconomic and cultural issues that persist in many African countries. These difficulties are also acknowledged in the UN SDGs. The 2010 regional assessment by the Southern African Development Community (SADC) also points out the effects of colonialism on land issues in southern Africa and emphasises that addressing women’s land rights cannot happen by policy alone. What should be addressed are the discriminatory provisions in national legislation and policy – especially in matrimonial and inheritance legislation – as well as tenure under traditional institutions that reinforce patriarchal systems of authority over land, which is discussed below (SADC 2010). The SDGs take a slightly different approach to women and land by adopting an environmentally conscious perspective. All the SDGs are relevant to women, and women should play influential roles in land issues and/or discussions through a ‘gender mainstreaming’ approach. Several SDGs relate to women and land access, namely SDG 1 on poverty reduction, SDG 4 on hunger alleviation, SDG 5 on gender equality and empowerment, SDG 10 on reduction of inequalities, SDG 13 on climate action and SDG 15 on life and land. SDGs 13 and 15 specifically recognise that rural women are affected by climate change and deforestation, as they already have limited land ownership. Women are not involved in pertinent conversations to improve ecosystems, even though they may have knowledge regarding environmentally sustainable practices.5 SDG 5 deals with women in more detail and sets nine targets for achieving gender equality and women’s empowerment. It calls for a review of laws and policies that perpetuate discriminatory practices everywhere, and for women’s participation in pertinent decision-making platforms. It specifies ‘undertak[ing] reforms to give women … access to ownership and control over land and other forms of property … essential for their economic security and status’ (UN General Assembly 2015: 15). This point of view is reiterated in several other SDGs. In terms of achieving the targets of SDG 5 regarding rural women, UN Women works with UN member states and organisations such as the FAO to empower rural women globally in terms of land ownership, economic productivity, healthcare and education. The SDGs create a critical international platform of accountability, as states are forced to approach the role of women from an ethical, intersectional and inclusive perspective where no one may be ‘left behind’. After having the status of a pariah during apartheid, South Africa made a commitment to the international human rights architecture (sections 231–233 of the Constitution). In 1994, the Reconstruction and Development Programme 60

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(RDP) detailed the goal of transferring ownership of agricultural land in white commercial farming areas to poor black South Africans. A target was set to transfer 30% of the land within the first 5 years of the programme. Initially the land (re)distribution policy set out priority groups, which included marginalised groups such as women, farmworkers, the disabled and the youth (35 years and younger) (Advisory Panel on Land Reform and Agriculture 2019: 50; Ministry in the Office of the President 1994: 41). However, in 2012 only about 7% of all land had been transferred/redistributed through land reform policies (FFC 2016: 39). Further, the prioritised groups have seemingly fallen through the cracks. In the National Development Plan 2030 (NDP) it is acknowledged that ‘although progress has been made to improve the lives of women, discrimination, patriarchal attitudes and poor access to quality education still persist … key priorities such as education or rural development will have the biggest impact on poor women’ (NPC 2012: 35). The NDP envisions a society where women experience security of tenure. The transformation of the current framework governing land use in traditional areas, especially involving women, is also envisaged, as is targeted support for rural women through agricultural development and improved land infrastructure. These goals are similar to those of SDG 5 and the AU’s Agenda 2063. However, they are far from being achieved, as is evidenced by the recommendation of the recent High Level Report. In 2017, the High Level Panel (HLP) on the Assessment of Key Legislation and the Acceleration of Fundamental Change, chaired by former President Kgalema Motlanthe, found that women make up 59% of people living under traditional leadership (HLP 2017: 476). However, the laws that govern traditional communities are oriented towards recognising women merely as ‘wives’, which is contrary to constitutional ethics. In terms of the progressive realisation of socioeconomic rights (SERs), the HLP recommended that emphasis be placed on women and other vulnerable groups in relevant legislation, policies and programmes. Upon examination of the poverty gap by gender, it was found that black South African women are among the poorest in the country, which points to a setback in achieving the goals of the NDP. A pertinent point made by the HLP report is that while there is an emphasis on gender equity in land redistribution polices, it still remains unclear what this means on a practical level, as women constitute only 23% of the land redistribution beneficiaries nationally (2017: 211). The report takes cognisance of the role of women and the impact of legislation on them and recommends a more robust approach to meeting women’s needs and interests, especially concerning land (2017: 224). This is strongly indicative of the challenges that women still face regarding land dispossession in post-democratic South Africa. The Advisory Panel on Land Reform and Agriculture was convened in 2019 by President Cyril Ramaphosa, with a mandate to consider the conditions of expropriation without compensation, focusing on agriculture and rural and urban land reforms in South Africa. The report of the panel built on the recommendations of the HLP. With specific reference to rural women, a roundtable discussion 61

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was held in March 2019, and case studies were the focal point. It was found that rural women are still oppressed by traditional leaders. They remain economically incapacitated, and the mere existence of legislation which advocates equal rights does not result in a change in their lived experience. Rural women continue to be ‘workers of the land, not owners of the land’ (Advisory Panel on Land Reform and Agriculture 2019: 38). An interesting point is that according to rural women, there has been no improvement of their circumstances despite the increase in female traditional leaders. The report also acknowledges the effect of entrenched patriarchal structures on the rights of African women in rural areas, where they are persistently precluded from land ownership and/or tenure, as the rules of access favour men and women remain excluded from pertinent land discussions (Advisory Panel on Land Reform and Agriculture 2019: 37). The Advisory Panel on Land Reform and Agriculture recommends, among other measures (2019: 46): • developing customary law in a manner that eradicates patriarchal practices; • reviewing or possibly repealing the KwaZulu-Natal Ingonyama Trust Act (No. 3KZ of 1994); • ensuring that developed land laws recognise women’s rights; • the joint registration of customary land rights; • merging marriage and inheritance laws; • including women in decision-making; • providing women with the necessary assistance in fulfilling their rights.

A transformative constitution The dawn of democracy in 1994 ushered in a new democratic order premised on, amongst other values, equality, dignity, freedom, non-sexism and non-racism. This change was embraced with great hope by many African communities marginalised by and from the ‘mainstream’ legal and political system. The democratic order offered something transformative, something new that encompassed the ethical and the feminine in contrast to the patriarchy of the past. Van Marle states: Ethical equality rests on the necessity of a vibrant public sphere, active politics and a thick version of democracy … equality should not only go beyond a formal protection, but should also entail more than a functionalist/instrumental aim of creating an egalitarian society. (2008: 128) Sections 9 and 25 of the Constitution guarantee equal rights for men and women and the right to property respectively. The Promotion of Equality and Prevention of Unfair Discrimination Act (No. 4 of 2000) (PEPUDA) was enacted to give effect to section 9. Further, in section 25(6), equality with respect to land rights is affirmed with the following: ‘A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act or Parliament, either to tenure which is legally secure or to 62

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comparable redress.’ The state thus has a duty in terms of section 25 to expropriate and redistribute land in an attempt to redress past injustices, but there has never been legislation or policy geared specifically towards women, to redress the inherent historical injustices perpetrated against them and to address their rights to land. Perhaps this is because ‘an ethical interpretation of equality requires attention to detail – to lived experiences, stories, responsibilities, relationships and the impact of judg(e)ments on real people’ – and the government rarely has time for this level of detail, however significant it may be (Bohler-Muller 2007: 10). When it comes to questions of lived experience, the continued recognition and application of customary law is also clearly referenced in section 211(3), which provides that ‘[t]he courts must apply customary law when that law is applicable subject to the Constitution and any legislation that specifically deals with customary law’. This is the provision that is widely recognised as establishing customary law as an alternate, yet equal, system of law to the common law. However, after more than 25 years since the commencement of the ‘new era’ of customary law there is still no certainty as to the nature of the reform and development of customary law. Thus far, the courts and Parliament have attempted to perform a delicate balancing act with a dual objective: to promote the cultural uniqueness of customary law as an indigenous African enterprise on the one hand and, on the other hand, to protect and promote women’s rights to equality and dignity in order to reduce the impact of patriarchy as embedded in customary law. The latter will be discussed in more detail later.

Legislation pertaining to customary law, women and land In South Africa, as in the rest of Africa, the characterisation of women’s land rights as secondary and subservient to those of men has had significant implications not only in terms of legal interventions and distortions, but also because of the extent to which constructs of exclusive male ownership have been internalised and used by men to justify appropriating and ignoring women’s land rights. – Aninka Claassens and Ben Cousins, Land, Power & Custom

In light of the constitutional provisions relating to equality, land and customary law, legislation has been promulgated to give effect to those provisions. The following are only a few examples: • The Recognition of Customary Marriages Act (No. 120 of 1998) (RCMA) establishes a comprehensive legislative framework with respect to the regulation of customary marriages. Notably, the Act establishes the equality of women in marriages, effectively abolishing their previous inferior role that placed them under the guardianship of their husbands. • The Traditional Leadership and Governance Framework Act (No. 41 of 2003) (TLGFA) was enacted with a view to establishing and recognising traditional structures and institutions in a manner that broke decisively from the practices of colonial and apartheid administrations. However, it was deemed ‘an apartheid

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distortion of customary law … entrenching the boundaries of the old tribal authorities, resulting in divided citizenship and economic inequality’ (Advisory Panel on Land Reform and Agriculture 2019: 29). • The Reform of Customary Law of Succession and Regulation of Related Matters Act (No. 11 of 2009) (RCLSA), as read with the Intestate Succession Act (No. 81 of 1987), was enacted as a direct result of the CC declaration on the official and unofficial customary law rules of inheritance, based on the principle of primogeniture, in Bhe and Others v Khayelitsha Magistrate and Others (hereafter Bhe).6 The Act was enacted to fill in the gaps left by the Bhe judgment by providing for a new statutory customary law of succession. • In 2008 and 2012, two versions of the Traditional Courts Bill were introduced to Parliament in order to effect a new traditional courts structure; however, these versions were withdrawn after staunch opposition from the public. The argument was that the proposed Bill would have bolstered the powers of traditional leaders. Such a law would have undermined the rights of the poorest South Africans as well as their ability to hold traditional leaders to account. It was argued that, instead of uplifting previously disadvantaged groups, the 2008 and 2012 versions discriminated against women and treated them as second-class citizens (Griffin 2017). In 2017, the government reintroduced a revised Traditional Courts Bill [B1–2017] (hereafter the TCB), after a consultative process that included state, civil society and local actors. Some positive factors in the 2017 version of the TCB include the limitation of the powers of traditional courts, freedom of speech and the participation of women in litigation processes (sections 5 and 7). Importantly, the 2017 version allows for a transfer of disputes to a Magistrate’s Court (section 14). Despite such developments, the TCB is still being tested within parliamentary processes. There are also laws that have tended to perpetuate unequal and unethical power relations within the context of customary laws, women and land. For example, despite numerous denouncements of the BAA as a racist piece of legislation, the Act has yet to be fully repealed. Whilst vast sections have been repealed, in order for the full repeal to happen, a new traditional court structure must be legislated. However, despite government efforts since 2005, for various reasons Parliament has been unable to deliver such legislation. Further, CLaRA would have had a significant impact on customary law had it been passed. Traditional communities have long been affected by land tenure rights and the contestation of power over communal land relative to the rights of families or individuals who have inherited sites, fields and access to grazing land over generations. In 2004, the government enacted CLaRA in an effort to redress issues of land tenure insecurity stemming from the apartheid regime and to establish a new system of land tenure in traditional areas. However, the Act caused an uproar in various rural communities, as it gave ‘wide-ranging’ decision-making powers to the tribal authorities that were created during apartheid. These powers included ‘control over occupation, use and administration of communal land’.7 This was

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perceived to be a reinforcement of apartheid-style laws that took power from the people and placed it in the hands of the (male) traditional leaders who were backed by government. Parallels can be drawn with Govan Mbeki’s statement on the Bantu Authorities Act: ‘Gone was the old give-and-take of tribal consultation, and in its place, there was now the autocratic power bestowed on the more ambitious Chiefs, who became arrogant in the knowledge that government might was behind them’ (1964: 119–120). Sections 22(3) and (4) of CLaRA made explicit provision for the inclusion of women. Section 22(3) stated that women should form a third of the land administration committee. Section 22(4) went further, stating that one member of the committee should represent the interests of vulnerable communities, including women, children, youth, the elderly and the disabled. The legislation did not, however, go far enough (Bohler-Muller & Daniels 2009). In 2010, in Tongoane and Others v National Minister of Agriculture and Land Affairs and Others,8 the CC found CLaRA invalid in its entirety, based predominantly on Parliament’s failure to follow correct processes and to conduct sufficient public consultations. There is still no adequate and ethically sound legislation to address security of land tenure and to reshape the land and power dynamics affecting women; however, the lessons to be learnt from CLaRA are that the inclusion of the public’s voice in any legislative process is imperative to its success.

Women’s empowerment through the courts Since the creation of the CC, more than 450 cases have been decided. As Heinz Klug (2010) remarks, the judges – especially the first bench under Arthur Chaskalson CJ – were asked to adjudicate cases and face challenges that would have been extraordinary for any judiciary. The cases discussed briefly below are among the most foundational and influential decided by the CC thus far, as they illustrate how the CC, as the apex court, has contributed to the transformation of law and society. The customary law cases discussed here assisted in empowering women; however, the effective implementation of these judgments is a slow process. Bhe; Shilubana and Others v Nwamitwa (hereafter Shilubana);9 and Rahube v Rahube and Others (hereafter Rahube)10 are cases that have resulted in the rewriting of aspects of the customary law of succession, which was heavily based on the traditional principle of male primogeniture. In these cases, the courts balanced the interests of customary law with gender equality. Notably, in Bhe the provisions of section 23(10) of the BAA were declared unconstitutional. The effect of this was that the customary law rules governing succession and primogeniture were inapplicable. Two aspects of the Bhe case should be highlighted. First, the CC confirmed that customary law is subject to the Constitution, which essentially means that customary law should be practised ethically. Second, the CC confirmed that customary law evolves according to the needs of the community, which feeds into the notion of a feminist lens encouraging 65

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the dismantling of archaic, patriarchal traditions and the inclusion of the ‘woman’s voice’.11 Aninka Claassens and Geoff Budlender discuss the CC’s admonishment – radical at the time – that the old authorities of customary law were often distorted by the influence of colonialism and apartheid; one could thus not rely on those sources ‘unthinkingly’ (2016). Practically, this meant accepting that the non-inclusion and second-class treatment of women from a customary perspective had the potential to be distorted and unethical. In order to fill the gaps, the RCLSA was promulgated. One of the primary objectives of reforming customary law in accordance with the Constitution’s transformative agenda has been to address the patterns of racial and gender discrimination that had become embedded in customary law. In Shilubana the issue of gender equality was brought into sharp focus, as the dispute related to the competency of a woman to assume a traditional leadership position in customary law. Due to the custom of male primogeniture, only a man was eligible to become the chief of a traditional community. In this matter the succession of Ms Shilubana, as the oldest child to the deceased chief, was contested on account of her gender. When the matter reached the CC, the Court focused on issues related to developing gender-inclusive institutions of traditional leadership, particularly where such were developed internally by the community itself, in recognition of the Constitution’s transformative imperatives.12 In September 2017, in Rahube, the Pretoria High Court declared section 2(1) of the Upgrading of Land Tenure Rights Act (No. 112 of 1991) (ULTRA), which perpetuated discrimination against black women, invalid. Mantshabelle Mary Rahube had made an application to have the section declared invalid and unconstitutional, as ULTRA allowed for the conversion of a ‘deed of grant’ into ownership rights, and women, under apartheid laws, were unable to own a deed of grant. In this case, this tenure right converted to her brother and granted him ownership of the family home. There was no regard for the fact that he no longer resided in the home and that it was his sister who was the primary resident. She was unaware of the conversion until her brother filed eviction proceedings against her.13 The court found that ULTRA was the government’s attempt to address a social injustice that refused ownership of property rights to black people, but there was a failure by government to consider the further inadvertent perpetuation of discrimination against women by the Act.14 The court also took into consideration the decision by the CC in Gumede (born Shange) v President of the Republic of South Africa and Others,15 which recognised that the scheme and land tenure rights recognised by ULTRA were racist and sexist.16 The Pretoria High Court found that the automatic conversion violated the fundamental legal principle that each party (including the occupants) should be given an opportunity to be heard.17 The order of invalidity was applied retrospectively and to anyone whose land tenure rights were converted to ownership after 27 April 1994.18 The High Court Order was confirmed by the CC on 30 October 2018.19 At the time of writing, Parliament had been given 18 months to amend the Act and bring it in line with the Constitution.

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The need for awareness of rights and the law Properties transferred from former homelands have constituted another unique challenge experienced by the Deeds and Surveyor General Offices in relation to women and land, and this issue has not yet been addressed by the courts. In these instances, properties were registered exclusively in the names of men, even though those men were already married in community of property at the time of registration. This has deprived and will still deprive some women and children of their property rights, as a man who is reflected as the sole owner of a property can at any time dispose of the property without the woman/his spouse’s knowledge and consent, especially if no verification is carried out on his marital status. This is compounded by the fact that most rural women do not have the funds to verify the status of their land – that is, until they are faced with legal challenges and are forced to seek counsel. Further, women in rural areas would rather look to traditional leaders for redress than depend on state mechanisms, for fear that they do not have the money to pay legal fees. There is a lack of awareness in rural communities of existing organisations with a mandate to represent the plight(s) of women. Therefore, the realisation of rights can be impeded not just by piecemeal adjudication but also by a lack of funds and a lack of awareness. Rural women are often married under customary law, in community of property and in polygamous marriages. Unregistered and unrecorded customary marriages can have an unwanted effect on those women and deprive them of their property and/ or land rights for the exact same reasons mentioned above: lack of funds, ignorance and patriarchal traditions. For example, a woman who wishes to acquire land needs the consent of her husband (because she is married in community of property) and proof of her marriage concluded under customary law. Further, in some communities, divorced women are ostracised, as they are considered to be bringing disrepute and dishonour upon their families. The consequence is that the woman is returned to her father’s house and her ex-husband retains ownership of the marital property (Claassens & Cousins 2008: 177). Patriarchal systems are pervasive and perpetuate a subconscious undercurrent, even where there are attempts at reformation and/or redress by the legislature and courts. It is often left to the courts to guide the interpretation of the law and bring discriminatory laws in line with the ethics and values of the Constitution. However, the courts are not equipped to entertain matters as they see fit; matters have to be initiated by affected parties. Given that women in rural parts of South Africa lack the formal education and training to completely understand the mechanisms available to them, ignorance and financial constraints will always be a barrier to the full extent to which the Constitution, and thus the courts, can offer protection.

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Table 3.1 Women’s property rights under customary law, in the past and currently Right

Traditional customary law in the past Customary law today

Right to own property

Women were generally not permitted to own property.

Women must be treated equally, and they have equal rights to own and acquire property.

Right to land tenure

Women typically did not have access to land tenure.

Women have equal rights to acquire land tenure. Traditional leaders and councils must treat women equally.

Right to inherit intestate

Women did not have any right to inherit; only men could (the rule of primogeniture).

Women have an equal right to inherit. Primogeniture is unconstitutional.

Source: Adapted from Beninger (2010: 15)

The situation as it stands While more effort still needs to be made in the discourse on women and land, there have been positive developments in the area of customary law. Christina Beninger, in a report published by the Women’s Legal Centre, summarises the changes in women’s property rights under customary law succinctly, as shown in Table 3.1. Notwithstanding encouraging changes in the landscape of customary law, women are still faced with unequal land distribution systems despite living in democratic and equal societies. Women in rural areas are crucial contributors to national food security, wealth and GDP, but they are often excluded from the creation and development of national policies, as they are deemed voiceless and still suppressed by different sociocultural factors, as was highlighted by the report of the Advisory Panel on Land Reform and Agriculture (2019: 37–40). In addition, women in rural areas may lack formal education and an understanding of the science of agriculture, which limits them to subsistence farming. However, they are still involved in crop production, even though they do not have access to the necessary funding, technology or service delivery for commercial production (Jili & Masuku 2017: 549). According to the FAO’s World Food and Agriculture Statistical Pocketbook 2018, 80% of land area in South Africa is still classified as agricultural. The percentage of females in agriculture stood at 3.9% in 2016, in stark contrast to 19.8% back in 1995 (FAO 2018: 204). While the difference between these figures could be attributed to urbanisation, the decline could also be a result of the sociocultural factors and unequal practices involved in agriculture and/or maintaining a livelihood in the rural sector. This is evidenced in the words of Nthabiseng Kgobokoe, a young female farmer, who shares her story – one of many – about women facing patriarchal barriers when trying to create and sustain a livelihood in the rural sector: ‘We as women have lost our birthright and source of life … this resulted in generational poverty negatively affecting our lives and that of our children in all spheres of life’ (Zikhali & Oosthuizen 2018: 10). The 2018 South African Social Attitudes Survey (SASAS) revealed that 67% of women supported the idea of land reform, while only 20% were satisfied with 68

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the progress made by government (Roberts et al. 2018: 15). Additionally, in a report compiled in 2015 by the Department of Women, Youth and Persons with Disabilities (DWYPD) on the status of women, land access was identified as one of the key issues that still needed to be urgently addressed by government. The report recommended that women be given greater consideration in the land reform programme (DWYPD 2015). Despite this recommendation in 2015, there are only two explicit mentions of women in the 2018 amendment of section 25 report by the Joint Constitutional Committee. The first instance mentions women who are negatively affected when farms are sold and breadwinners become incapacitated, and the second instance is a statement calling for the prioritisation of vulnerable groups such as women, farm dwellers, labour tenants and so forth when land is redistributed (Parliament 2018: 19). One can only hope that, moving forward, due regard is given to the HLP report and various other expert panel reports and that there is an engagement with substantive issues regarding women. In a 2019 report titled Feminist Analysis of ANC, EFF and DA Manifestos – In Brief, the Womxn and Democracy Initiative (WDI) reports on a study conducted in Parliament on the top three political parties in South Africa and their views on issues related to women. On the issue of land, it was found that the ANC, although in support of expropriation and redistribution, remains gender-blind on women’s land ownership. The Economic Freedom Fighters (EFF), also in support of expropriation, maintains that women and youth should own 50% of the land, but they provide no clear guidelines or strategies on how to achieve this objective. The Democratic Alliance (DA) maintains a strong opposition to expropriation without compensation and remains gender-blind (WDI 2019). Despite much political and populist rhetoric about land expropriation without compensation, no concrete strategies or plans are in place, besides the recent section 25 debate. It remains a possibility that rural women, although considered in the initial stages, may end up predominantly silent (or silenced), while the focus remains on traditional leaders and the ‘white monopoly capital’ discourse. As a case in point, despite the criticisms levelled at the Ingonyama Trust for blatant gender discrimination and unlawful practices, it still exists (Advisory Panel on Land Reform and Agriculture 2019: 28). Women’s inability to secure land rights, previously and currently, does not appear to be at the top of the agenda for any political players. This is clearly illustrated by the signing of the Traditional and Khoi-San Leadership Bill [B23–2015] by President Ramaphosa on 20 November 2019. The Traditional and Khoi-San Leadership Act (No. 3 of 2019) is considered by critics as a reversion to the ‘Bantustan’ (former black homelands) policies of the apartheid era. First, it reinforces the physical and psychological boundaries of the previous dispensation. Second, the aim of the Act is to give traditional leaders and/or traditional councils enough power to conduct business with mining companies. It thus allows traditional councils to sign away vast areas of communal land without the consent of the community. Eighteen million South Africans residing in rural areas will be impacted by this new Act.20 This legislation has been criticised by civil society and the HLP for appearing to go against the grain of democracy and disregarding the recommendations of the

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HLP. It seems to be a repeat of the Ingonyama Trust saga and creates an opening for the successful promulgation of the TCB by Parliament (HLP 2017: 423, 469). The TCB will officially see the creation of traditional courts and will subject rural citizens, living under a tribal authority, to those courts.21 Legislation that enforces traditional leadership – a form of patriarchy – is not good news for women, who barely have access to land, much less fertile land. If traditional councils use land to barter for financial benefit with mining conglomerates, this would lead to the degradation of fertile land and the continuation of unsustainable mining activities.22 Additionally, the health of the community will also be affected. The issue is complicated by the fact that concerns must be raised before the very traditional authorities that sold the land. This is a clear example of land policies that are unethical and unconstitutional and have no regard for women’s voices. One must further consider whether there is adequate and/or appropriate representation of rural women in the executive and legislative arms of government. In 2019, for the first time since 1994, women made up 50% of Parliament. However, do these female representatives, past and present, use their platforms to address issues of land equality or are they merely there to meet the recommended standards for perceived inclusivity and equality? (Nkoana-Mashabane 2019). In the 2020 Women’s Day presidential address during the Covid-19 national lockdown, President Ramaphosa made five promises to women (in the form of action points), one of which is giving women access to land. He stated: The third action is to speed the process of giving women access to productive assets such as land. We will ensure that our own land reform process favours all historically disadvantaged people – including women – in getting land and the means to farm it. Of the R75m in Covid-19 relief earmarked for farming input vouchers, 53% of the beneficiaries will be rural women. We must ensure women subsistence and smallscale farmers continue to receive support beyond the lockdown. At the same time, we will be calling on AU member states to put policies in place to increase women’s ownership of land to 30%. (Ramaphosa 2020) While these measures promise to be significant steps in benefiting women in terms of land access, follow-through and implementation will determine whether this becomes another broken promise. The challenges discussed in this chapter exist in a 25-year-old constitutional democracy that entrenches important values and objectives, with an internationally revered Constitution that is meant to be a conduit for progressive change, offering an ethical lens to address societal disparities. Unfortunately, this progression is seldom seen in discussions of gender and land, except perhaps on a theoretical level, centred on research and analysis. In practice, the inclusion of the feminine voice – the rural woman’s voice – is reserved for the less prominent of societal conversations, as are so many other voices considered as Other.

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Conclusions Those of us who stand outside the circle of this society’s definition of acceptable women; those of us who have been forged in the crucibles of difference – those of us who are poor, who are lesbians, who are Black, who are older – know that survival is not an academic skill. It is learning how to take our differences and make them strengths. For the master’s tools will never dismantle the master’s house. They may allow us temporarily to beat him at his own game, but they will never enable us to bring about genuine change. – Audre Lorde, Sister Outsider (emphasis added)

Despite the policies and interventions that have been put in place to ensure women’s participation in agricultural projects and land ownership, there is still a dearth of research on land ownership dynamics affecting women in rural areas (Jili & Masuku 2017: 548). The discussion of land is also more than just proprietary. It is about security: land carries physical, cultural, ancestral/spiritual, psychosocial and emotional significance. Ownership or legal possession of the land not only means that a woman will have a place to call her own; she will also have food security, a place to bury her loved ones, ties to her cultural roots. She will be able to sleep peacefully knowing that she will not be dispossessed, and she will have a legacy to pass on to her children. The challenges that women face a quarter of a century into the democratic era are disheartening, especially considering that the ANC-led government has promulgated laws and issued resolutions intended to redress the land challenges women face. In reality, this legislation has made little or no difference to women’s lives. The land redistribution programme must therefore target women who have been disenfranchised, dispossessed and oppressed under the system of patriarchy. Institutions, practices and laws that discriminate against women’s access to land must be reviewed and brought in line with national policy. In particular, tenure and matrimonial laws must be revised. The most significant lesson learnt should be a resolve by the government not to repeat the blatant mistake that was CLaRA. The courts should not have to realign the path of the legislature, which is expected to be guided by the values of the Constitution. As the section 25 debate is evolving and has not yet resulted in legislative change, it should be kept in mind that the land reform/redistribution debate is a highly complex issue with polarising views and approaches, which makes it especially difficult to develop a uniform approach. In fact, the debate has adopted the characteristics of a ‘living’ organism. Test cases and expropriation practices to date are insufficient for firm conclusions to be drawn and do not offer easy answers, especially as women are still largely ignored in law formulation and practice. This issue of the exclusion of women’s voices is an ethical issue, not only a developmental or economic one, especially in the case of rural development. Finally, besides considering the plight of rural women, who mostly live under traditional rule, more research is required on the urban context of women, including white women. 71

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Notes 1 Parliamentary Monitoring Group, Section 25 review process. Accessed 27 July 2019, https://pmg.org.za/page/Section25reviewprocess?via=homepage-feature-card 2 Mertens M, Constitutional amendment process for expropriation without compensation is revived, Daily Maverick, 26 July 2019. Accessed 25 July 2019, https://www.dailymaverick. co.za/article/2019-07-26-constitutional-amendment-process-for-expropriation-withoutcompensation-is-revived/ 3 Stand for Her Land, Women in half the world still denied land, property rights despite laws, press release, 25 March 2019. Accessed 11 November 2020, https://stand4herland.org/ women-in-half-the-world-still-denied-land-property-rights-despite-laws/ 4 The Preamble of the Constitution states: ‘Heal divisions of the past and establish a society based on democratic values, social justice and fundamental human rights … improve the quality of life of all citizens and free the potential of each person’. 5 UN Women, SDG 15: Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss. Accessed 15 July 2019, http://www.unwomen.org/en/news/in-focus/ women-and-the-sdgs/sdg-15-life-on-land 6 2005 (1) SA 580 (CC). 7 LARC (Land and Accountability Research Centre), Communal Land Rights Act (CLaRA). Accessed 7 July 2019, https://www.customcontested.co.za/laws-and-policies/communalland-rights-act-clara/ 8 2010 (6) SA 214 (CC). 9 2009 (2) SA 66 (CC). 10 2018m (1) SA 638 (GP). 11 Bhe at para. 54. 12 The 2013 decision in Mayelane v Ngwenyama and Another 2013 (4) SA 415 (CC) is of equal importance here. The CC’s pronouncements entrench the notion that integral to the recognition of a customary law wife’s equality and dignity is the requirement that her consent be sought before her husband enters into any further marriages. 13 Abdool Karim S, GroundUp: Court declares land tenure act invalid, Daily Maverick, 28 September 2017. Accessed 7 July 2019, https://www.dailymaverick.co.za/article/2017-0928-groundup-court-declares-land-tenure-act-invalid/ 14 Rahube at paras 50–51. 15 2009 (3) SA 152 (CC). 16 Rahube at para. 28. 17 Rahube at paras 58–67. 18 Rahube at para. 77. 19 Rahube v Rahube and Others 2019 (2) SA 54 (CC). 20 Heywood M, The Traditional Khoisan Leadership Bill: President signs away rural people’s rights, Daily Maverick Citizen, 29 November 2019. Accessed 7 July 2019,

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https://www.dailymaverick.co.za/article/2019-11-29-the-traditional-khoisan-leadership-billpresident-signs-away-rural-peoples-rights/ 21 Heywood M, The Traditional Khoisan Leadership Bill: President signs away rural people’s rights, Daily Maverick Citizen, 29 November 2019. Accessed 7 July 2019, https://www.dailymaverick.co.za/article/2019-11-29-the-traditional-khoisan-leadership-billpresident-signs-away-rural-peoples-rights/ 22 Heywood M, The Traditional Khoisan Leadership Bill: President signs away rural people’s rights, Daily Maverick Citizen, 29 November 2019. Accessed 7 July 2019, https://www.dailymaverick.co.za/article/2019-11-29-the-traditional-khoisan-leadership-billpresident-signs-away-rural-peoples-rights/

References Ad Hoc Committee (Ad Hoc Committee to Amend Section 25 of the Constitution) (2019) Report of the Ad Hoc Committee to Amend Section 25 of the Constitution of the Republic of South Africa, 1996, dated 13 March 2019. Parliamentary Monitoring Group. Accessed 27 July 2019, https://pmg.org.za/tabled-committee-report/3713/ Advisory Panel on Land Reform and Agriculture (2019) The final report of the presidential Advisory Panel on Land Reform and Agriculture. 4 May. Pretoria: The Presidency. Accessed 15 October 2019, https://www.gov.za/documents/final-report-presidential-advisory-panelland-reform-and-agriculture-28-jul-2019-0000 AU (African Union) (2015) Agenda 2063: The Africa we want. Framework document. September 2015. Addis Ababa: AU. Accessed 15 October 2020, https://au.int/sites/default/files/ documents/33126-doc-framework_document_book.pdf Beninger C (2010) Women’s property rights under customary law. Cape Town: Women’s Legal Centre. Accessed 8 August 2019, http://wlce.co.za/wp-content/uploads/2017/02/WomensProperty-Rights-Under-Customary-Law.pdf Bohler-Muller N (2007) Developing a new jurisprudence of gender quality in South Africa. LLD thesis, University of Pretoria Bohler-Muller N & Daniels B (2009) Does the Communal Land Rights Act really protect the rights of rural women to own land? AfricaGrowth Agenda 2009(4): 26–27. Accessed 7 July 2019, https://journals.co.za/docserver/fulltext/afgrow/04/1/afgrow_apr_2009_a8.pdf?expires=156570 4059&id=id&accname=58207&checksum=FD822B767FBB2F990F25F87C0A512F15 Claasens A & Budlender G (2016) Transformative constitutionalism and customary law. Constitutional Court Review 6(1): 75–104 Claassens A & Cousins B (2008) Land, power & custom: Controversies generated by South Africa’s Communal Land Rights Act. Cape Town: University of Cape Town Press Cornell D & Van Marle K (2015) Ubuntu feminism: Tentative reflections. Verbum et Ecclesia 36(2): Art. 1444. https://doi.org/10.4102/ve.v36i2.1444 DRDLR (Department of Rural Development and Land Reform) (2017) Land audit report. Phase II: Private land ownership by race, gender and nationality. November 2017. Pretoria: DRDLR. Accessed 15 October 2020, http://www.ruraldevelopment.gov.za/phocadownload/CadastralSurvey-management/Booklet/land%20audit%20booklet.pdf

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DWYPD (Department of Women, Youth and Persons with Disabilities) (2015) The status of women in the South African economy. Pretoria: DWYPD. Accessed 25 July 2019, http://www.women. gov.za/images/STATUS-OF-WOMEN-IN-THE-SOUTH-AFRICAN-ECONOMY-.pdf Facio A (2017) Insecure land rights for women threaten progress on gender equality and sustainable development. United Nations Human Rights, Special Procedures. Working Group on the issue of discrimination against women in law and in practice. Accessed 22 October 2020, https://www.ohchr.org/documents/issues/women/wg/womenslandright.pdf FAO (Food and Agriculture Organization of the United Nations) (2018) World food and agriculture statistical pocketbook 2018. Rome: FAO Press FFC (Financial and Fiscal Commission) (2016) National land reform programme and rural development. In Submission for the division of revenue 2017/18. 27 May. Midrand: FFC. Accessed 12 November 2020, https://ffc.co.za/images/testfolder/FFC_ Submission_2017-2018.pdf Griffin R (2017) The Traditional Courts Bill: Are they getting it right? Helen Suzman Foundation (HSF), HSF Briefs, 14 February 2017. Accessed 7 July 2019, https://hsf.org.za/publications/ hsf-briefs/the-traditional-courts-bill-are-they-getting-it-right Held V (2006) The ethics of care: Personal, political, and global. London: Oxford University Press HLP (High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change) (2017) Report of the High Level Panel on the assessment of key legislation and the acceleration of fundamental change. November 2017. Accessed 10 October 2020, https://www.parliament.gov.za/high-level-panel Jili N & Masuku MM (2017) Access to land and women’s participation in small-scale farming at uMlalazi local municipality. Journal of Public Administration 52(3): 548–561 Klug H (2010) Finding the Constitutional Court’s place in South Africa’s democracy: The interaction of principle and institutional pragmatism in the Court’s decision making. Constitutional Court Review 3: 1–32. Accessed 11 November 2020, https://constitutionalcourtreview.co.za/volume-iii-2010/ Lorde A (2007/1984) The master’s tools will never dismantle the master’s house. In Sister outsider: Essays and speeches. Berkeley: Crossing Press. Accessed 31 July 2020, http://s18.middlebury.edu/AMST0325A/Lorde_The_Masters_Tools.pdf Mbeki G (1964) South Africa: The peasants’ revolt. Baltimore, Maryland: Penguin Books Ministry in the Office of the President (1994) White paper on reconstruction and development. Notice No. 1954 of 1994. Government Gazette Vol. 353, No. 16085, 23 November. Accessed 12 November 2020, https://www.gov.za/sites/default/files/governmentgazetteid16085.pdf Molope M (2018) The decision to amend section 25 of the Constitution shakes cohesion: Perceptions of the public hearing participants in the North West Province. Journal of Public Administration 53(2-1): 320–338 Nicolaides A (2015) Gender equity, ethics and feminism: Assumptions of an African Ubuntu oriented society. Journal of Social Science 42(3): 191–210. https://doi.org/10.1080/09718923. 2015.11893407 Nkoana-Mashabane M (2019) Women, Youth and Persons with Disabilities dept budget vote 2019/20, 9 July 2019. Accessed 7 July 2019, https://www.gov.za/speeches/minister-maitenkoana-mashabane-women-youth-and-persons-disabilities-budget-vote-201920-9 74

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Norlock K (2019) Feminist ethics. In Stanford Encyclopedia of Philosophy, 27 May 2019. Accessed 25 July 2019, https://plato.stanford.edu/entries/feminism-ethics/#Inte NPC (National Planning Commission) (2012) National Development Plan 2030: Our future – make it work. Pretoria: The Presidency. Accessed 15 October 2020, https://www.gov.za/ documents/national-development-plan-2030-our-future-make-it-work Parliament (2018) Announcements, tablings and committee reports, Thursday 15 November 2018. No. 169–2018. Fifth session, Fifth Parliament. Accessed 12 November 2020, https://www. parliament.gov.za/storage/app/media/Docs/atc/a3985fff-84d0-4109-80f4-e89064c8dede.pdf Pauls EP (2010) Primogeniture and ultimogeniture. Encyclopedia Britannica. Accessed 7 July 2019, https://www.britannica.com/topic/primogeniture Ramaphosa C (2020) Women’s Day 2020, 9 August 2020. Accessed 15 November 2020, https://www.gov.za/speeches/president-cyril-ramaphosa-womens-day-2020-9-aug-2020-0000 Roberts B, Bohler-Muller N, Struwig J, Radebe T & Mtyingizane S (2018) No man’s land: A gendered analysis of support for land reform in South Africa. HSRC Review 16(3): 12–15 SADC (Southern Africa Development Community) (2010) Land policy in Africa: Southern Africa regional assessment. Addis Ababa: AUC-ECA-AfDB Consortium United Nations (UN) (1948) The universal declaration of human rights. Accessed 17 January 2021, https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf UN (1966a) International Covenant on Civil and Political Rights. Accessed 17 January 2021, https://www.refworld.org/pdfid/3ae6b3aa0.pdf UN (1966b) International covenant on economic, social and cultural rights. Accessed 17 January 2021, https://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf UN (1981) Convention for the Elimination of All Forms of Discrimination Against Women. Accessed 17 January 2021, https://www.ohchr.org/Documents/ProfessionalInterest/cedaw.pdf UN CEDAW (Convention on the Elimination of All Forms of Discrimination against Women) (2016) General recommendation No. 34 on the rights of rural women. 4 March. Accessed 22 October 2020, https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_ Global/INT_CEDAW_GEC_7933_E.pdf UN General Assembly (2015) Transforming our world: The 2030 Agenda for sustainable development. Accessed 9 August 2019, https://www.un.org/pga/wp-content/uploads/sites/3/2015/08/120815_ outcome-document-of-Summit-for-adoption-of-the-post-2015-development-agenda.pdf Van Marle K (2008) Haunting (in)equalities. In R Hunter (Ed.) Rethinking equality projects in law: Feminist perspectives. London: Hart Publishing Warikandwa T & Nhemachena A (2017) Colonial land dispossession and restorative justice after genocide: An appraisal of the practicality of the Nama and Herero reparation claims. In T Warikandwa, A Nhemachena & O Mtapuri (Eds) Transnational land grabs and restitution in an age of the (de-)militarized new scramble for Africa: A Pan African, socio-legal perspective. Bamenda: Langaa Research and Publishing Common Initiative Group WDI (Womxn and Democracy Initiative) (2019) Feminist analysis of ANC, EFF and DA manifestoes – in brief. May 2019. Accessed 7 July 2019, https://dullahomarinstitute.org.za/ women-and-democracy/submissions/feminis-analysis-anc-eff-da-in-brief.pdf Zikhali T & Oosthuizen A (2018) The voices of landless women: Fighting racism and sexism. HSRC Review 16(3): 9–11 75

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Cases Bhe and Others v Khayelitsha Magistrate and Others 2005 (1) SA 580 (CC) Gumede (born Shange) v President of the Republic of South Africa and Others 2009 (3) SA 152 (CC) Mayelane v Ngwenyama and Another 2013 (4) SA 415 (CC) Rahube v Rahube and Others 2018m (1) SA 638 (GP) Rahube v Rahube and Others 2019 (2) SA 54 (CC) Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) Tongoane and Others v National Minister of Agriculture and Land Affairs and Others 2010 (6) SA 214 (CC)

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4

Presidential leadership and accountability, from Mandela to Ramaphosa Richard Calland and Mabel Nederlof Sithole

The President is the Head of State and Head of the national Executive … To him is the executive authority of the entire Republic primarily entrusted. He initiates and gives the final stamp of approval to all national legislation. And almost all the key role players in the realisation of our constitutional vision and the aspirations of all our people are appointed and may ultimately be removed by him. Unsurprisingly, the nation pins its hopes on him to steer the country in the right direction and accelerate our journey towards a peaceful, just and prosperous destination, that all other progress-driven nations strive towards on a daily basis. He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of State affairs and the personification of this nation’s constitutional project. – Chief Justice Mogoeng Mogoeng1

The Covid-19 pandemic has placed the leadership of presidents and prime ministers across the world under the most unforgiving spotlight.2 It has exposed underlying weaknesses and revealed hidden strengths. An extreme crisis such as the pandemic provides the most searching examination of a political leader – a very acute form of accountability. Such a crisis can make or break a presidency. The burdens of both responsibility and expectation sit heavily upon the shoulders of South Africa’s president, as is captured so well in the excerpt above from Chief Justice Mogoeng Mogoeng’s judgment in the seminal ruling of the Constitutional Court (CC) in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others3 (hereafter the Nkandla case). What are the implications of the Covid-19 crisis for presidential leadership and accountability? Donna Ladkin, a scholar based in the USA, paints a grim picture of what the global pandemic has left in its wake, beneath the long shadow cast by then president Donald Trump: We may all be in this together, but some of us are much more ‘in it’ than others. Even with the death toll growing daily, with ice hockey rinks being converted to temporary morgues and University sports facilities transformed into makeshift hospitals, here in the US, the news is dominated by one man: Donald Trump. Forget that more people are now dying of COVID-19-related complications every day than of cancer or heart disease. Forget that over 22 million Americans have filed for unemployment in the last four weeks. (2020: 274)

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This situation is not far removed from what South Africans are confronted with today. Already weakened by a decade of ‘state capture’ and a mounting fiscal crisis, the democratic state has had to contend with an unexpected global systemic shock that presents intense ethical as well as policy dilemmas. No one expected a global pandemic to test the strength of South Africa’s existing institutions, including its public healthcare capacity, and to further stretch dwindling public resources, leaving the country gasping for air. To add to the sense of an historical moment, George Floyd’s death during the pandemic triggered global support for the Black Lives Matter movement, emphasising the persistent structural inequality and racism that black people face across the world. In South Africa, this coincided with a surge in cases of gender-based violence. Already facing a fiscal crisis prior to the unexpected arrival of the novel coronavirus, South Africa was down-graded to ‘junk’ sub-grade investment status in March 2020 and was compelled to seek loans from global financial institutions, including the International Monetary Fund (IMF). As the crisis mounted, so too did the pressure on the government and President Cyril Ramaphosa, who was elected on a ‘reform and renewal’ ticket, both as the ANC president (in 2017) and then as president following the national elections in 2019. Ramaphosa assumed power at a very delicate time. He has had to contend with the grave fiscal and economic consequences4 of what he himself has described as ‘nine lost years’.5 The Judicial Commission of Inquiry into Allegations of State Capture (also known as the Zondo Commission), chaired by Deputy Chief Justice Raymond Zondo, has opened up a Pandora’s box of corruption, nepotism and loss of institutional integrity. Many of the culprits exploited weaknesses in public accountability from positions of authority – in the state, the ruling party and/or the private sector. As Ivor Chipkin et al. describe, a shadow state emerged, in parallel to the constitutional order, challenging the normative order and tipping South Africa into an ethical quagmire from which it is struggling to emerge (2018). This led veteran Cabinet Minister Pravin Gordhan to assert that ‘[w]hat divides us is not colour or race, or even ideology. It is ethics’ (Le Roux & Davis 2019: xii). Part of the crisis in leadership in South Africa is that, against this backdrop, public trust has unsurprisingly declined, as the South African Social Attitudes Survey (SASAS) by the HSRC has shown.6 Both the global and the local contexts indicate, therefore, that humanity faces an ethical crisis, exposed by the response to the Covid-19 pandemic and by state capture, respectively. This implies that there is a need for a form of leadership that responds to the ethical crisis. In South Africa and around the world, there is a severe challenge to the normative core. Hence, our conceptual approach to comparing the presidents of South Africa’s democratic era is guided by the notion of ethical presidential leadership. As the mid-point in Ramaphosa’s first term as president approaches, this is a particularly good time to consider presidential leadership and accountability in South Africa by looking backwards as well as forwards.

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An ethical presidential leadership approach Scholarship on ethical leadership Although there are multiple definitions of ethical leadership, some of which focus on the ‘appropriateness of normative conduct’ (Eisenbeiss, cited in Den Hartog 2015: 412), this chapter adopts an interpretation of ethical leadership based on the effect of leaders’ behaviour on others and on the public interest.7 Deanne den Hartog cites Karianne Kalshoven et al., who emphasise that ethical leaders are ‘driven by moral beliefs and caring values, and they aim for their actions and judgments to be beneficial for followers, organizations and society’ (2015: 411). This includes refraining from actions which may harm others (Gini 1998; Kanungo 2001). Although conceptualised in the context of behavioural and organisational studies, these definitions are helpful in the analysis of presidential leadership which either promotes the public interest or undermines it. For example, where Den Hartog and other scholars of organisational behaviour refer to definitions of ‘abuse’ and ‘tyranny’ with an emphasis on a leader’s personal relations with others in an organisational context, we stress a leader’s relationship with the public, measured by expectations stipulated by a constitutional mandate. It is important to note that the dividing line between what is classified as ethical or unethical leadership is complex, and the possibility for contradiction always exists. For example, President Ramaphosa’s imposition of a lockdown in South Africa to delay the spread of Covid-19 is arguably in the interests of the public, as it is aimed at lowering death rates and managing pressure on the health system; however, the same action has been deemed unconstitutional by some interest groups because of the restriction of fundamental freedoms and its devastating economic consequences. The result is that Ramaphosa found himself on the horns of a very difficult ethical and policy dilemma. Nirmala Dorasamy frames ethical leadership in the context of public leadership, which is purposed to ‘guide decisions and actions for sustainable quality of services from public institutions’ for the public good (2010: 2087–2088). Furthermore, Dorasamy posits that where ethical leadership is lacking, this contributes to the erosion of the credibility of public institutions. Crisis compounds the allocation and distribution of already scarce resources (Alam & Hoque, cited in Dorasamy 2010: 2088). Importantly, as illustrated by the crisis imposed by the Covid-19 pandemic, responsive public institutions steered by ethical leaders must be better prepared to resist the shocks of crisis. Cam Caldwell and Verl Anderson refer to Thomas L Friedman, who noted the shortcomings of leaders across the public and private sector, many of whom have failed ‘to make the tough decisions in a world seemingly headed for growing political and military conflict, economic decline, and environmental turmoil’ (2017: 54). Amongst the many tools used to measure ethical leadership, Annebel de Hoogh and Deanne den Hartog set this in a framework that focuses on the ‘socially responsible’ use of power (2009). Den Hartog adds that ethical leaders ‘take responsibility for their own and followers’ actions as well as the ensuing consequences’ (2015: 414). This has particular resonance in the context of South Africa’s current political and 79

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electoral system, where the president is greatly advantaged or disadvantaged by the prevailing balance of power within the ruling party (the ANC). Linda Klebe Treviño et al., as cited by Den Hartog, state that ‘setting ethical expectations and holding oneself and others accountable is associated with perceptions of ethical leadership’ (2015: 414). Den Hartog expands on this, arguing that ethical leaders ‘act with fairness, respect, and integrity; make principled choices; are trustworthy; and do not practice favouritism’ (2015: 414).

Constitutional fidelity and institution-building South Africa is a constitutional democracy. Fundamental to its transition from the arbitrary, authoritarian and discriminatory rule of the apartheid era was the establishment of a rules-based society in which executive power would have to be exercised against the stern test of what Etienne Mureinik called a ‘culture of justification’ (1994: 32).8 Moreover, the founding document of South Africa’s new democracy was conceived as more than merely a map of the fresh distribution of power and authority; it is a constitution with a ‘transformative’ purpose – to adopt the notion articulated in Karl Klare’s seminal 1998 work ‘Legal Culture and Transformative Constitutionalism’. Hence, given the Constitution’s transformative socioeconomic imperative and the fact that it provides a normative framework for both South Africa’s governance and accountability, this chapter proposes that in the South African context ethical leadership cannot be reasonably assessed without analysing presidential leaders’ respect for the Constitution (what we term ‘constitutional fidelity’). The above assertion is a fundamental premise upon which our approach to our assignment is based; however, we also acknowledge that the legitimacy of the Constitution is deeply and increasingly contested. Dennis Davis is among those who have wrestled meaningfully with this contestation (2018). Davis cites one of the Constitution’s most forceful critics, legal scholar Joel Modiri,9 when he explains that by diluting the power of parliamentary sovereignty and replacing it with constitutional supremacy, the Constitution privileged Eurocentric law, the colonial heritage, culture and institutions, thereby securing the ill-gotten privileges of whites and the consequent debasement of black citizenship, which began in 1652 through colonisation, land disposition and cultural decimation. For Modiri, the Constitution thus represents the ‘prolonging of an anti-black colonial project’. (2018: 363)10 Davis also quotes (former CC Justice) Albie Sachs’ typically ardent defence: If government hasn’t done as much as it could have done, that’s a valid point. But we can’t put the blame on the Constitution [… which is] South Africa’s greatest tribute to the people who died in the struggle for liberation. It’s a beautifully crafted document, referred to with enormous admiration throughout the world. And it’s ours, we made it; we wrote it; and we are applying it today. (2018: 362) 80

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Davis ultimately opts for a ‘third way’ of viewing the Constitution, in line with Klare, namely that ‘[t]he Constitution embodies a dramatically expanded conception of human self-realisation and therefore of democracy’ (Davis 2018: 368). Davis also accepts that ‘South African constitutional jurisprudence and scholarship has failed to craft a new South African identity and that many of the key challenges of restitution [and] redistribution … have not been met.’ As a result, it has not yielded the transformed value system needed to deliver substantive democracy for all citizens and, ‘in particular, a transformative change to the profound inequality and levels of poverty fashioned over 365 years of racist and sexist rule has not taken place’ (2018: 360–361). One explanation for the apparent dichotomy between the Klare-esque transformative ideal of the Constitution and the failures of policy, politics and service delivery that have bedevilled all of the post-1994 administrations is a deficit in ethical leadership (as we define it). For example, in his memoir titled My Second Initiation, Advocate Vusi Pikoli reflects on the ANC’s decision to dismantle the Scorpions soon after Jacob Zuma became president of the ANC in 2007:11 While some of the Scorpions investigators relocated to the police, most quit and were lost to the private sector. One result of this, in my opinion, is that the country’s levels of corruption have increased … Nobody wants to tackle what we call grand corruption or political corruption. We focus on small cases, charges are being withdrawn and cases are being dropped. Politically influenced matters such as those involving Northern Cape ANC Chair John Block and even ANC President Jacob Zuma have been affected. As a result, we are losing the respect we used to have in terms of being seen to be serious in the fight against corruption. The whole world was coming to South Africa to learn from the experience of the Scorpions, we were hosting delegations, the United Nations was proud of the unit. And we lost all of that. We know the cost of corruption to the economy and that is money that does not find its way to the poor. (Pikoli & Wiener 2015: 139) It is in this sense that constitutional fidelity measures a commitment to a written code – a legal normative standard – which informs policies driving social, economic and political transformation. The extent to which the president adheres to the constitutional written code will have profound implications in relation to the normative code that informs the use of executive power. Hence, we regard it as the primary lens through which to gauge ethical presidential leadership. Institution-building is a close relative of constitutional fidelity – it is the other side of the same coin – since South Africa’s Constitution is notable for the extensive constellation of ‘institutional infrastructure’ that it establishes. Institution-building ensures that the vehicles for this transformation have the necessary organisational drivers, fit for purpose in every sense.12 As H. Kwasi Prempeh presents, there is a need to shift focus, from presidential leadership with centralised power to building

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credible and effective institutions at the national and local levels (2008). Prempeh presents the consequences of predatory presidential tactics for the project of institutionalisation as follows: Personalistic presidential rule in Africa became, in effect, a ‘substitute for institutionalization’. Institutions outside the presidency – the legislature, the courts, the civil service, local government – withered as just about every public decision of any import found its way to the president’s ‘in box’. (2008: 111) However, while we agree that institution-building is critical, institutions without conscious, visionary and accountable leaders are vulnerable to abuse of power and loss of integrity. In thinking about this facet of leadership and accountability, we contemplate a wider lens, one that incorporates the institutional capacity of the Presidency itself as well as key executive institutions, such as the National Planning Commission (NPC). Leadership requires capacity, in the sense that in the modern era, government is complex (Guerin et al. 2018) and for a head of government to provide ethical leadership, they must have the means to exert authority in a substantive sense, through their policy engagement and ability to provide guidance to line ministries and senior public servants. If the head is denied the means to assert such authority, the normative code could be attacked or weakened – as has happened, in fact. In other words, ethical leadership requires strong, capable institutions. In seeking to establish a bridge between the study of leadership through an ‘individual’ lens – which focuses on the personal attributes of the particular human being – and a more macro perspective that encompasses the leader’s role as ‘CEO’ of a large and complex democratic state, we hope to offer something new to the academic literature on leadership. Inevitably, space constraints limit how far we can take this analysis here. Thus, the primary intention is to stimulate debate and fresh thinking about what constitutes ethical presidential leadership and how to assess it, while extracting a few of the most striking examples from the necessarily attenuated studies in presidential leadership attempted in this chapter – what we have therefore placed under the heading ‘inceptive reflections’. This chapter assesses leadership across three presidencies, namely those of Nelson Mandela, Thabo Mbeki and Jacob Zuma. It does not attempt to include Ramaphosa at this stage, on the grounds that it is too early in his presidency to do justice to the subject in a fast-changing environment. However, in the concluding section we offer some tentative thoughts about the implications for Ramaphosa’s presidential leadership and the remainder of his term of office. What makes this an interesting and essential exercise is that the four leaders (if we include Ramaphosa) have had significantly different relationships with the Constitution – and, perhaps, with the rule of law more generally. It is also worth noting at the outset that while one political party has remained in power since 1994, winning six straight national elections with never less than 62.15% of the popular vote, none of South Africa’s five presidents have seen out a full, maximum term of 82

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office – a remarkable feature of South Africa’s democratic era. This paradox – of an electorally dominant party, but with rotation of power at presidential level – may be a reflection of the intense contest for power within the ANC rather than an indication of the strength or otherwise of South Africa’s consolidating democratic system.

Inceptive reflections: Constitutional fidelity and institutionbuilding of three presidents Nelson Mandela: 1994–99 During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I  have cherished the ideal of a democratic and free society in which all persons will live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to see realised. But … if it needs be, it is an ideal for which I am prepared to die. – Nelson Mandela, Rivonia Trial, 20 April 1964 Even the most benevolent of governments are made up of people with all the propensities for human failings. The rule of law as we understand it consists in the set of conventions and arrangements that ensure that it is not left to the whims of individual rulers to decide on what is good for the populace. The administrative conduct of government and authorities is subject to scrutiny of independent organs. This is an essential element of good governance that we have sought to have built into our new constitutional order. An essential part of that constitutional architecture is those state institutions supporting constitutional democracy. Amongst those are the Public Protector, the Human Rights Commission, the Auditor General, the Independent Electoral Commission, the Commission on Gender Equality, the Constitutional Court and others. – Nelson Mandela, Address at the International Ombudsman Institute 7th International Conference13

Nelson Mandela set the normative core of the ‘new’ South Africa. His famous statement at the Rivonia Trial and his global iconic status as a fighter for human rights against the tyranny of apartheid had established his ethical leadership ethos. But that was in opposition, against a ‘crime against humanity’. The question that arose with his rise to the Presidency was whether being in power would serve to dilute or distract Mandela’s commitment to human rights and the rule of law, given that as president his relationship with the judiciary would be severely tested (Mandela & Langa 2017: 121). In power, did he live up to his reputation and did his actions match his words? As far as his own direct relationship with the law is concerned, it is hard to imagine a more unequivocal position than the one that Mandela adopted when challenged in the leading case of the South African Rugby Football Union (Sarfu).14 In that matter, Mandela’s decision-making was challenged by the gregarious head of the rugby union, Louis Luyt, who resented Mandela’s insistence on the need for racial transformation in the sport and his appointment of a judicial commission of inquiry to investigate governance of Sarfu. Luyt sought to judicially review the decision 83

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and was successful in the first instance. Significantly, and unusually for such an application, the applicant successfully sought an opportunity to cross-examine Mandela. Thus, a sitting president appeared in the witness box in the High Court. The cross-examination was lengthy, and yet when Justice de Villiers suggested that Mandela take a seat, the octogenarian politely declined. Although it was later overturned by the CC, the High Court decision went against Mandela. His public reaction was unhesitating: to ‘abide by the decisions of our courts’. Mandela said that ‘all South Africans should likewise accept their rulings. The independence of the judiciary is one important pillar of our democracy’ (Mandela & Langa 2017: 125). Later, in 2000, he said: It was to me never reason for irritation but rather a source of comfort when these bodies were asked to adjudicate on actions of my government and office and judged against it. One of the first judgments of our Constitutional Court, for example, found that I, as President, administratively acted in a manner they would not condone. From that judgment my government and I drew reassurance that the ordinary citizens of our country would be protected against abuse, no matter from which quarters it would emanate. (cited in Madonsela 2014) These statements of categorical support for the principle of the supremacy of the Constitution and the rule of law, contrast sharply with Mandela’s successors’ ambivalence and, later, obstructionism and blatant challenges to the authority of the judicial branch of government (as we shall see later in this chapter). In an effort to overhaul the apartheid network of corrupt and unaccountable institutions, Mandela supported the idea of institution-building that acknowledged ethnic diversity and its relevance. Giovanni Carbone posits that the plurality of South Africans along racial, ethnic, linguistic and geographic lines led to the adoption of ‘consociational politics’ – ‘rainbow-ism’ in more common parlance – which assumes that political parties, as institutions, are able to represent diverse groups (2001: 231). Despite the risk of neglecting the country’s complex racial, class and ethnic diversity, South Africa under Mandela’s leadership managed to set up consociational institutions with the goal of enabling power-sharing between ‘co-existing communities’, thereby lowering exclusion and potential conflict(s) or confrontation (Carbone 2001: 239). The relationship between political parties, their representatives, and the legitimacy or effectiveness of institutions in a system of proportional representation (PR) may have set up both a trap and an opportunity for democratic governance and accountability. For example, this system has meant that parties control candidate lists for parliamentary representatives, who face multiple dilemmas – primarily, whose interests matter most: the Constitution’s or the party’s?15 One aspect of the transition to democracy that has inevitably attracted controversy is that the new democratic dispensation to some extent adopted what can be called ‘apartheid institutions’ such as Eskom and the Industrial Development Corporation (IDC). The incorporation of apartheid-era public administrators

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by Mandela’s government may, arguably, have led to a ‘locking in’ of policies initiated by the apartheid government, which may have in turn served to perpetuate structural and spatial development disparities (Reboredo 2019). The ambitious, wholesale reform of apartheid-era law and policy presented numerous governance and institutional challenges. The 2002 discussion document of the Department of Water Affairs and Forestry (DWAF), for example, asserted that the failures to deliver access to water across the country were also the result of institutional fragmentation, incoherent policy, the absence of a coherent institutional framework, and overlapping institutional mandates/boundaries (DWAF 2002: 26). These complex difficulties are symptomatic of institutional challenges that confronted other sectors in South Africa during and after Mandela’s presidency. Because these challenges are by their very nature intractable, and influenced by multiple players within and outside government, accountability becomes a grey zone. Benoit Guerin et al. confirm this, arguing that ‘[s]uccessive governments have used private and voluntary sector providers to deliver services, but have failed to put in place effective mechanisms to scrutinize the performance and value for money of such arrangements’ (2018: 5). The issue of institutional coordination and the role of the Presidency in addressing the obstacles highlighted above is not an easy one to address. Some scholars attribute the failure of the Reconstruction and Development Programme (RDP) in 1996 to the challenges of horizontal coordination and planning (Kraak 2011). Nicoli Nattrass and Jeremy Seekings, as cited by Andre Kraak, add that this failure can also be attributed to the lack of central direction from the RDP Ministry which, in turn, did not receive backing from powerful actors in government (Kraak 2011: 351). Further, William Gumede, also cited in Kraak, states that the ‘1998 Presidential Review Commission into public services, chaired by Vincent Maphai, noted “serious weaknesses in the current structures and mechanisms for coordination both within departments and provinces and between different spheres of government”’ (Kraak 2011: 353). Vinothan Naidoo reinforces this perspective, citing poor communication of coordination mandates and the mammoth task of administrative transformation (2013: 389). Mandela’s presidency took decisive steps to address this by clustering government ministers into strategic policy ‘clusters’ such as social, economic, investment and employment; international relations; peace and security; and governance and administration (Naidoo 2013: 390). This step was supported by strengthening Cabinet ministers’ administrative support and establishing a Policy Coordination and Advisory Services (PCAS) Unit. These efforts, however, did not yield the intended results, as subsequent investigations unearthed the persistence of institutional ‘silos’ and cosmetic cooperation between government departments (Naidoo 2013). Although Mandela made significant strides in policy to ensure intra-government accountability by better coordinating implementation, and exhibited a commitment

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to the Constitution, we cannot move on without referencing the Arms Deal, a major defence procurement project finalised by the government in 1999.16 Corruption Watch quotes former ANC MP Andrew Feinstein, who resigned from Parliament when efforts to investigate the deal were resisted: ‘I describe the arms deal and both the corruption in the deal and the efforts to cover up that corruption as being the point at which the ANC lost its moral compass, and I believe that as the years have gone by that contention has only been reinforced.’17 The Arms Deal implicates not one but three South African presidents (Zuma faces criminal charges arising from his involvement) and represents the slippery slope of unethical conduct by the ANC. Clearly, a leader may be strong ethically in one matter and fail to exhibit the same tenets in another matter. The romanticisation of Mandela as the ideal or perfect president is therefore neither helpful nor justifiable.

Thabo Mbeki: 1999–2008 Mbeki’s relationship with the Constitution was more complex and nuanced than Mandela’s. His ‘I am an African’ speech, delivered the day on which the final Constitution was passed by the Constitutional Assembly in May 1996, was his finest speech and possibly his finest hour (Calland & Oxtoby 2010: 72). Yet, his relationship with the founding law itself was somewhat ambivalent – he largely dissociated himself from its writing and negotiation, leaving the task of leading the Constitutional Assembly to his great rival in the ANC’s leadership stakes, Cyril Ramaphosa. Further, his record as president contains more than one notable stain; for one, his position on HIV and/or AIDS represented what the CC held to be a serious transgression of the constitutional right to access to adequate healthcare.18 As his biographer notes, Mbeki saw himself as a great moderniser (Gevisser 2009: 245, 269). Like other ANC presidents, Mbeki’s reform efforts always had to contend with opposition from within the broader ANC movement – such as complaints from unions or the South African Communist Party (SACP) about his role in the Mandela government’s secretive move towards the Growth, Employment and Redistribution (Gear) programme, or laments about his aloof and imperial style, including the substantial buttressing of capacity at the centre of government. Yet, Mbeki clearly understood the importance of strong institutions, as we discuss later. His record on accountability and human rights is even more ambiguous, mainly because of the controversy unleashed by his dogmatic stance on HIV and antiretroviral (ARV) treatment. The CC found that the government’s disinclination to make resources available for the purchase and administering of an ARV drug called nevirapine (which expert evidence showed had a high chance of preventing mother-to-[unborn]child transmission of HIV) was unreasonable and therefore unconstitutional.19 With a contemporary resonance related to concerns about transparency and the government’s responses to the Covid-19 pandemic, the CC also criticised what a subsequent member of the Court, Edwin Cameron, described as ‘another weakness of Mbeki’s leadership style – his tendency towards undue secrecy’

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(Cameron 2014). In Minister of Health and Others v Treatment Action Campaign and Others,20 the CC stated: The magnitude of the HIV/AIDS challenge facing the country calls for a concerted, co-ordinated and co-operative national effort in which government in each of its three spheres and the panoply of resources and skills of civil society are marshalled, inspired and led. This can be achieved only if there is proper communication, especially by government. In order for it to be implemented optimally, a public health programme must be made known effectively to all concerned, down to the district nurse and patients. Indeed, for a public programme such as this to meet the constitutional requirement of reasonableness, its contents must be made known appropriately.21 Mbeki’s ‘Machiavellian’ style of leadership has been the subject of a great deal of comment and scrutiny. In their chapter ‘Machiavelli meets the Constitution: Mbeki and the Law’, in Mbeki and After, Richard Calland and Chris Oxtoby examine the case against Mbeki in terms of his partisan use of the law, spanning his handling of the Arms Deal, the ‘opportunistic’ use of judicial inquiry (the Hefer Commission) and the problematic suspension of Vusi Pikoli as National Director of Public Prosecutions (NDPP) and of Billy Masetla as head of the National Intelligence Agency (NIA) (Calland & Oxtoby 2010). These issues lead to a justifiable ‘perception that public institutions are often used selectively to sideline opponents within and outside the ANC’ (Gumede 2007: 387). Although Mbeki’s reputation as a ‘great constitutionalist’ is certainly debatable, Kraak (2011: 351) notes that, like his predecessor, Mbeki attempted to institutionalise horizontal coordination, policy integration and planning. The results varied in scale and impact. Mbeki’s administration facilitated greater interdepartmental coordination on socioeconomic challenges through the Department of Public Service and Administration (DPSA) and the Intergovernmental Relations Framework Act (No. 13 of 2005), but the impact of these initiatives was hampered by limited ‘central capacity to drive priorities and ensure quality control’ (Gumede 2009: 23). Mbeki himself spearheaded a drive towards collective accountability with oversight from his office. Gumede cites the Accelerated and Shared Growth Initiative for South Africa (AsgiSA) as the ‘the flagship planning mechanism of the 2004–2008 Mbeki government, which was allegedly weakened by the lack of coordination between government departments’ (cited in Kraak 2011: 354). The Fifteen-Year Review, a product of the Presidency’s PCAS unit – itself a significant example of Mbeki’s serious-minded approach to presidential policy coordination and institutionbuilding – confirmed the fractures in government coordination (Kraak 2011: 354). It is important to note that the coordination challenge is not unique to South Africa and has, in fact, vexed public administrations for centuries (Peters 2018: 9). Despite the positive efforts made by Mbeki to strengthen institutions, especially in the Presidency itself, it is possible to argue that the deterioration in public accountability

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and the degradation of democratic institutions during the Zuma era can be traced back to Mbeki’s time. However, given the scale and depth of the state capture project that unfolded during the ‘nine wasted years’ in which Zuma was president, this would be a very harsh judgement to pass on Mbeki. The selective use of institutions and legal process during Zuma’s time may have had some roots in Mbeki’s use of power and authority. To this can be added Mbeki’s interference in the prosecutorial pursuit of Zuma, which made bitter rivals of the two heavyweight ANC leaders. The profound knock-on implications of this for factional warfare within the ANC led to Zuma’s ascent to power at the Polokwane ANC National Conference in 2007 and continue to impact on internal ANC politics (Calland 2013: 3–4).

Jacob Zuma: 2009–18 The extent to which Zuma betrayed the principles of constitutional democracy, as the CC itself found, and permitted his cronies and relatives to corrupt democratic processes and institutions took matters to a far deeper and darker level. Given the protestations of innocence that continue to come from Zuma himself, how can such a categorical assertion be made? There is a weight of evidence available, from a large number of court cases and from the Zondo Commission appointed by President Ramaphosa. Most significant among the cases that deal with Zuma and the Constitution is the Nkandla case, in which the CC found that the president had failed to meet his constitutional obligations. This chapter begins with a powerful quotation from Chief Justice Mogoeng’s judgment in the Nkandla case, in which he sets out in simple terms the responsibility that lies with the president. However, this is just one of a number of cases where the court made serious findings against Zuma. In Corruption Watch NPC and Others v President of the Republic of South Africa and Others; Nxasana v Corruption Watch NPC and Others22 (hereafter Nxasana), for example, the court found that Zuma was so concerned by the threat that the NDPP posed to him and his interests that he did everything he could to remove Nxasana from office: The facts set out above point to one thing and one thing only: former President  Zuma was bent on getting rid of Mr Nxasana by whatever means he could muster.  His was an approach that kept on mutating: it was first a stick; then a carrot; a stick once more; and eventually a carrot … What plainly evinces how desperate former President Zuma was to get rid of Mr Nxasana is that this was followed by a draft settlement in which the amount was left blank. Mr Nxasana was being told to pick whatever figure.23 The role of the NDPP became a hot potato in the Zuma years, as the then president shuffled the office on frequent occasions in an attempt to ensure that he or his cronies would stay clear of the arms of justice. One of the first judgments passed by

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the CC against the rogue administration was to declare as irrational and unlawful Zuma’s decision to appoint another ally, Menzi Simelane, as NDPP. The CC held that the absence of a rational relationship between means and ends in this case is a significant factor precisely because ignoring prima facie indications of dishonesty is wholly inconsistent with the end sought to be achieved, namely the appointment of a National Director who is sufficiently conscientious and has enough credibility to do this important job effectively.24 Legal practitioners and scholars Advocate Michelle le Roux and High Court Judge Dennis Davis point to at least 50 cases involving the Zuma administration brought to the superior courts throughout his turbulent reign (Le Roux & Davis 2019: 273– 276). By the end of it, the judiciary seemed to have lost their patience with the president’s manipulation of the legal process. Just weeks before the political sword fell, the North Gauteng High Court had one final dagger for Zuma, ordering that he could not use taxpayer money to defend the revived corruption charges against him from the Arms Deal ordeal and therefore, by virtue of precedent, further criminal charges which might follow from his role in the state capture project.25 Judgments such as these were the catalyst that set the wheels of accountability turning on the state capture project, creating a platform for a reform-minded president – Ramaphosa – to restore the normative core, a point we return to in the conclusion. But what did Zuma’s leadership mean for institution-building? One of his first acts upon taking office after the 2009 election was to begin the process of dismantling the institutional capacity of the Presidency that Mbeki had so painstakingly built up. The PCAS was broken up, as part of a hollowing out of the Presidency (Calland 2013: 29). If you are planning to run a government ‘off book’, then you have little need for such capacity – in fact, it would be an inconvenience. Yet, the paradox is that Zuma also established a National Planning Ministry in the Presidency, charged with the responsibility to set up the NPC – a commitment that Zuma had made to the Congress of South African Trade Unions (Cosatu) and the SACP as a part of the ‘coalition of the wounded’ that defeated Mbeki at the ANC’s watershed national conference in Polokwane in 2007. Its purpose would be to develop medium- to long-term strategic plans. Zuma also prioritised 12 ‘whole of government’ social policy objectives (Kraak 2011: 355). The National Development Plan 2030 (NDP) was launched during Zuma’s first presidential term. Zuma’s first administration also set up the Department of Performance, Monitoring and Evaluation (DPME), a unit within the Presidency housing monitoring and evaluation experts. Signalling a clear shift from individual performance tracking, the DPME focused on measuring ‘collective outcomes’. The DPME has been strengthened by political support and a strong leadership team, but limited by poor quality data and compliance reporting (Goldman 2014). Despite the fact that there were some positive institutional innovations, the overwhelming presence of crumbling accountability in the Department of Social 89

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Development (DSD), Eskom, the South African Broadcasting Corporation (SABC) and other institutions under Zuma’s presidency far outweighs any advances that were made under his two administrations.26 The Marikana massacre, in which nearly 40 miners were murdered by police officers, occurred during Zuma’s first administration. In his second administration, a no less shocking and shameful abuse of state power occurred when 140 mentally ill patients died at the hands of NGOs that received government contracts without proper vetting. This case is critical in demonstrating the weaknesses of collaboration in service delivery, especially in determining who is accountable when service standards are compromised. Between 2015 and 2016, 1 711 patients were moved from Life Esidimeni – a provider of mental health services in Gauteng province – to a number of NGOs. A report documented by the Health and Human Rights Journal found that patients were subjected to trauma, abuse, torture and poor health outcomes (Durojaye & Agaba 2018). The Office of the Health Ombud, established by the National Health Amendment Act (No. 12 of 2013), played a critical role in opening an investigation into the deaths and allegations. The Health Ombud’s comprehensive report, The Circumstances Surrounding the Deaths of Mentally Ill Patients: Gauteng Province, uncovered a disturbing truth: 27 NGOs that received patients did not have an operating licence and the deaths were ‘unlawful’ (Durojaye & Agaba 2018). In March 2018, Justice Dikgang Moseneke delivered an arbitration award, which confirmed that public officials had abused their power and that their conduct lacked transparency and accountability. Three senior officials related to the Gauteng Mental Health Marathon Project resigned from their positions (Durojaye & Agaba 2018). Despite the investigation, arbitration and resignations, the Health Ombud’s recommendations have not yet been fully implemented. (See Chapter 11 in this volume for more on the Life Esidimeni case study.)

Conclusion: Restoring public integrity – Ramaphosa’s ethical presidential leadership challenge Life Esidimeni is an important case study that illustrates the complexity of analysing Zuma’s presidency and institution-building. Despite the existence of institutions providing oversight and accountability, the abuse of power, mismanagement and a lack of transparency still impact negatively on basic human rights and services. Like Mbeki’s irrational denialism regarding the HIV and/or AIDS pandemic, Zuma’s presidency and leadership indirectly resulted in the deaths of vulnerable South Africans through mismanagement and abuse of power in the Life Esidimeni scandal. As yet, the human cost of state capture still has to be calculated. The evidence before the Zondo Commission has presented chapter and verse of the lack of ethical leadership during Zuma’s two terms in power. However, the fact that such a commission has been able to independently investigate allegations of state capture, going so far as to question former President Zuma himself, is testament to the fact that all is not lost. This is Ramaphosa’s complex, contradictory inheritance. By word and deed, and in accordance with his activist history, Mandela proved himself, largely, to be a 90

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committed constitutionalist. His leadership as president was one of almost entirely unequivocal constitutional fidelity, despite the fact that post 1994 South Africa’s first major corruption case – the Arms Deal – took place under his presidential watch, setting in motion a sequence of events that contributed to the erosion of ethical standards within the ANC and, in due course, the whole of the democratic state. Zuma faces criminal trial arising from his own involvement in the Arms Deal. Further, it should not be forgotten, in the context of ethical leadership, that although he was acquitted of the charge of rape, his own evidence in the criminal trial in 2005–06 was that he had had unprotected (consensual) sexual intercourse with a much younger woman for whom he had an ‘avuncular’ duty of care, notwithstanding the fact that he was aware of her HIV-positive status at a time when he was head of the government’s National AIDS Council – surely a significant moment in the ethical ‘slide’. While Mbeki did his utmost to strengthen the capacity and coherence of democratic governance, most notably with reforms to the Presidency itself, it is hard to avoid the conclusion that Mbeki’s approach to statecraft and to the political management of his complicated and often fractious party led him – perhaps unwittingly, but unerringly nonetheless – to undermine the Constitution and the rule of law. He will not, therefore, ‘be remembered as a great constitutionalist’ or ethical leader (Calland & Oxtoby 2010: 102). Zuma’s presidency, however, took the process of ethical degradation to another, far more damaging level. Any positive institutional advances, such as the national development planning process, were eclipsed by the far-reaching harm caused by the deliberate hollowing out of many significant public institutions, thus rendering them vulnerable to capture by venal individuals and factions, many of them close to the president himself. Notwithstanding the damage caused to South Africa by the Zuma years, one consolation is the strengths unearthed in the instruments created during the democratic transition. The Constitution was stress-tested by Zuma’s use and abuse of power. And it prevailed: the rule of law held firm and an independent judiciary laid the ground for Zuma to be held to account both legally and politically. Yet, great damage was done to institutions and to public confidence in the democratic state. Accordingly, it now falls to President Ramaphosa to reinstate a culture of public accountability in order to rebuild lost trust in government, and in so doing reassert a normative order that has been shaken to its core. Ramaphosa made substantial strides in a relatively short time after Zuma was ousted from the Presidency in February 2018. During his first year in office Ramaphosa set in motion a number of key processes necessary to rebuild institutions. Highprofile and public inquiries, some concluded and some ongoing, have taken place in response to the constitutional degradation wrought by the Zuma administration. These include the Nugent Commission of Inquiry into Tax Administration and Governance by the South African Revenue Service (SARS) and the Mokgoro Inquiry into the fitness to hold office of Deputy NDPP Nomgcobo Jiba and her colleague Lawrence Mrwebi. Most famously, the ongoing Zondo Commission has seen high91

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profile ANC members and associates, including no less than Zuma himself, being called to give testimony on the state capture project or volunteering to do so. It is too soon to conclude whether this project of rebuilding will succeed, or whether it will be derailed by the apparent ongoing fightback from factions within the ANC – and from within the Economic Freedom Fighters (EFF) – who are threatened by Ramaphosa and his reform agenda and who have vested interests that need to be defended. Reimposing a lost normative order in the state will not be easy and will evidently continue to be fiercely resisted in some quarters. Ramaphosa’s task is comparable to that of Sisyphus. Every step up the steep hill will be contested and subject to pushback, mainly from those with the most to lose from the establishment of a strong ethical and normative core. Much will depend on how effectively Deputy Chief Justice Zondo will be able to wrap up the work of the commission, which has had to seek an extension of its term. Then, it will be up to Ramaphosa to execute expeditiously the reforms and remedial action recommended by the commission, assuming that they are sufficiently clear, meaningful and decisive. And below the surface sits a nagging question: Is the president really accountable? And, an even more vexed question: To whom and how? The relationship between the president and the ruling party is clearly pivotal, regardless of what the Constitution says. In this regard, a decisive factor in presidential leadership and accountability in modern South Africa is how the president is able to navigate this inherently complex political nexus. In the more than 25 years since 1994 there has been both impressive constitutional fidelity and egregious constitutional infidelity. There has been impressive institutionbuilding and destabilising institutional destruction. Thus, South Africa’s experience of presidential leadership and accountability since 1994 is a confusing and often contradictory mixture of strength and weakness, success and failure, resilience and vulnerability. There are numerous implications for Ramaphosa and future leaders. To re-establish the normative core that Mandela set, with his unequivocal support for the principle of constitutionalism and the supremacy of the rule of law, the pitfalls and transgressions of the Zuma era must be guarded against. Individual ethical standards of the highest order are essential, but these must be buttressed by strong, capable public institutions – like the ones Mbeki recognised and built, and that Zuma hollowed out and rendered vulnerable to capture. At an historical moment for humanity, the presidential leadership stakes could not be higher for the state of the nation in every sense – for the authority of the Presidency and the democratic state, the integrity of the Constitution, and the socioeconomic stability and advancement of South Africa. Notes 1 Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (CCT 143/15; CCT 171/15) [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (31 March 2016), at para. 20.

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2 Calland R, All world leaders face mega COVID19 crises: How Ramaphosa is stacking up, The Conversation, 25 March 2020. Accessed 7 August 2020, https://theconversation.com/allworld-leaders-face-mega-covid-19-crises-how-ramaphosa-is-stacking-up-134682 3 (CCT 143/15; CCT 171/15) [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (31 March 2016). 4 There is ample evidence of how state capture has harmed investor confidence in South Africa. As the evidence and consequences of the state capture project started to be revealed, economic and business confidence indicators suffered major slumps. South Africa’s Rand Merchant Bank (RMB)/Bureau for Economic Research (BER) Business Confidence Index (BCI) fell from a high of 52 in late 2014 to a low of 27 during mid-2017. Also in the middle of 2017, the BCI of the South African Chamber of Commerce and Industry (SACCI) fell from a 2014 high of 107.3 to a low of 89.6 (see South African Chamber of Commerce and Industry (2019) Business Confidence Index: February 2019, p. 2). Credit ratings agencies Fitch and S&P Global Ratings both downgraded South Africa to ‘junk’ status in April 2017 (see Misheck Mutize and Sean Gossel (2019) South Africa is close to ‘junk status’ from all three rating agencies. What could follow? The Conversation, 22 August 2019). 5 A transcript of Ramaphosa’s off-the-cuff remarks at a side event at the World Economic Forum (WEF) 2018, setting out his vision for reform and renewal while acknowledging the ‘missteps’ of the previous decade, can be found here: Hogg A, Ramaphosa goes off piste in Davos, BizNews, 25 January 2018. Accessed 7 August 2020, https://www.biznews.com/wef/ davos-2018/2018/01/25/ramaphosa-off-piste-davos-straight-talk 6 Since 2011, the HSRC has surveyed people’s attitudes towards political leaders in South Africa through the SASAS. This annual survey asks respondents how satisfied they are with political leadership in South Africa. Between 2011 and 2015, 57% of adults who participated in the survey expressed their dissatisfaction with political leaders. Only 28% of adult respondents stated that they are satisfied with South Africa’s political leadership, and the trend is downwards. Pienaar et al. (2016) Media Brief, 26 July 2016. http://www.hsrc.ac.za/ en/media-briefs/dces/elections-leaders. 7 See Den Hartog (2015: 412). 8 Chief Justice Mogoeng, at the outset of his judgment in the Nkandla case, states: ‘One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalised during the apartheid era. To achieve this goal, we adopted accountability, the rule of law and the supremacy of the Constitution as values of our constitutional democracy’ (at para. 1). 9 Modiri is one of a number of decolonial scholars who influenced movements such as Rhodes Must Fall and Fees Must Fall, some of whose members adopted strongly antiConstitution stances. 10 See also Albertyn (2019) and Modiri (2018a, 2018b). 11 The Scorpions were an independent investigation unit responsible for investigating and prosecuting organised crime and corruption. The unit was well known for pursuing political cases of corruption and mismanagement in South Africa. 12 In approaching our ambitious assignment, we developed a distinctive conceptual framework for assessing presidential leadership based on five criteria: constitutional fidelity, institutionbuilding, socioeconomic transformation, decision-making and political judgement, 93

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and strategic vision and statecraft. We will develop and then apply this framework in a forthcoming book that has been commissioned by Penguin Random House. 13 International Ombudsman Institute 7th International Conference on Balancing the Exercise of Governmental Power and its Accountability, Durban, 2000. Cited by the Constitutional Court in South African Informal Traders Forum and Others v City of Johannesburg and Others; South African National Traders Retail Association v City of Johannesburg and Others (CCT 173/13; CCT 174/14) [2014] ZACC 8 at para. 3. 14 President of the Republic of South Africa and Others v South African Rugby Football Union and Others (CCT 16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059. 15 This has led to numerous calls for reform of South Africa’s electoral system, not least because of the impact that it has on Parliament’s ability to fulfil its constitutional oversight mandate – a subject that has attracted the interest of the Zondo Commission. One submission to the Commission on this subject ends with the following conclusion and recommendation: ‘One simple, yet potentially far-reaching reform would be to amend section 47 of the Constitution and to remove the provision (section 47(3)(c)) that gives the political party and its leadership and whips so much power over the individual backbench MP. Accordingly, I recommend that Parliament should give this reform serious consideration. Indeed, it may well be required to do so if it is to produce a coherent and comprehensive response to the New Nation Movement judgment, as noted above. Liberating an individual MP from the shackles of their party would be a potential game-changer in terms of enabling parliamentary oversight. But it would need to be considered holistically, in the light of the overall system of government including the electoral system. Notwithstanding such a significant reform, more than anything, however, enlightened political leadership – in the executive and at the top of the majority party – will be an essential pre-condition for successfully establishing a sustainable oversight and accountability culture and practice’ (Calland 2020: 25). 16 The Arms Deal, otherwise known as the Strategic Defence Package, was a military acquisition project involving corruption scandals at the highest levels of government. The KPMG forensic report provides details of the investigation (KPMG n.d.). 17 Corruption Watch, The Arms Deal: What you need to know, 22 January 2014. Accessed 20 August 2020, https://www.corruptionwatch.org.za/the-arms-deal-what-you-need-to-know-2/ 18 Minister of Health and Others v Treatment Action Campaign and Others (No 1) (CCT 9/02) [2002] ZACC 16; 2002 (5) SA 703; 2002 (10) BCLR 1075. 19 Minister of Health and Others v Treatment Action Campaign and Others (No 1) (CCT 9/02) [2002] ZACC 16; 2002 (5) SA 703; 2002 (10) BCLR 1075. 20 (No 1) (CCT 9/02) [2002] ZACC 16; 2002 (5) SA 703; 2002 (10) BCLR 1075. 21 Minister of Health and Others v Treatment Action Campaign and Others (No 1) (CCT 9/02) [2002] ZACC 16; 2002 (5) SA 703; 2002 (10) BCLR 1075 at para. 123. 22 (CCT 333/17; CCT 13/18) [2018] ZACC 23; 2018 (10) BCLR 1179 (CC); 2018 (2) SACR 442 (CC). 23 Nxasana at para. 25. 24 Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) at para. 89.

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25 Democratic Alliance v President of the Republic of South Africa and Others; Economic Freedom Fighters v State Attorney and Others (21405/18; 29984/18) [2018] ZAGPPHC 836; [2019] 1 All SA 681 (GP) at paras 81–82. 26 For one of many accounts of the capture of state institutions, see Eberhard and Godinho (2017). Also, the founding application of Eskom’s litigation to recover stolen funds from, amongst others, Brian Molefe, Anoj Singh and Matshela Koko, former CEO, CFO and COO of Eskom respectively, can be found at https://amabhungane.org/wp-content/ uploads/2020/08/Eskom_Summons-and-POC-.pdf (accessed 7 August 2020).

References Albertyn C (2019) (In)equality and the South African Constitution. Development Southern Africa 36(6): 751–766. https://doi.org/10.1080/0376835x.2019.1660860 Caldwell C & Anderson V (2017) Guest editorial. International Journal of Public Leadership 13(2): 54–58 Calland R (2013) The Zuma years: South Africa’s changing face of power. Cape Town: Zebra Press Calland R (2020) Parliamentary oversight and executive accountability in a time of ‘state capture’: Diagnosis of an institutional failure and ideas for reform. Submission to the Zondo Commission of Inquiry on State Capture Calland R & Oxtoby C (2010) Machiavelli meets the Constitution: Mbeki and the Law. In D Glaser (Ed.) Mbeki and After: Reflections on the legacy of Thabo Mbeki. Johannesburg: Wits University Press Cameron E (2014) Justice: A personal account. Cape Town: Tafelberg Press Carbone G (2001) Constitutional alternatives for the regulation of ethnic politics? Institutionbuilding principles in Uganda’s and South Africa’s transitions. Journal of Contemporary African Studies 19(2): 229–252 Chipkin I, Swilling M, Bhorat H, Buthelezi M, Duma S et al. (2018). Shadow state: The politics of state capture. Johannesburg: Wits University Press Davis DM (2018) Is the South African Constitution an obstacle to a democratic post-colonial state? South African Journal on Human Rights 34(3): 359–374. https://doi.org/10.1080/02587 203.2018.1543839 De Hoogh AHB & Den Hartog DN (2009) Ethical leadership: The positive and responsible use of power. In D Tjosvold & B Wisse (Eds) Power and interdependence in organizations. Cambridge, UK: Cambridge University Press Den Hartog DN (2015) Ethical leadership. Annual Review of Organizational Psychology and Organizational Behaviour 2: 409–434 Dorasamy N (2010) The impact of the global crisis on ethical leadership: A case study of the South African public sector. African Journal of Business Management 4(10): 2087–2096 Durojaye E & Agaba DK (2018) ‘Perspective’ Contribution of the Health Ombud to accountability: The Life Esidimeni tragedy in South Africa. Health and Human Rights Journal 16 November. Accessed 26 August 2020, https://pilot.uwc.ac.za/xmlui/bitstream/handle/10566/5030/ Durojaye.pdf?sequence=1&isAllowed=y

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DWAF (Department of Water Affairs and Forestry) (2002) Water services: Discussion document towards a white paper. Pretoria: DWAF Eberhard A & Godinho C (2017) Eskom inquiry reference book. October 2017. State Capacity Research Project. Accessed 7 August 2020, https://www.gsb.uct.ac.za/files/Eskom_Enquiry_ booklet_V3_Web_3.pdf Gevisser M (2009) A legacy of liberation: Thabo Mbeki and the future of the South African dream. New York: St. Martin’s Press Gini A (1998) Moral leadership and business ethics. In CB Ciulla (Ed.) Ethics, the heart of leadership. Westport, CT: Quorum Books Goldman I (2014) A focus on M&E of results: An example from the Presidency, South Africa. Journal of Development Effectiveness 6(4): 392–406 Guerin B, McCrae J & Shepheard M (2018) Accountability in modern government: Recommendations for change. Institute for Government, London. Accessed 7 August 2019, https://www.instituteforgovernment.org.uk/sites/default/files/publications/Accountability_ modern_government_WEB.pdf Gumede W (2007) Thabo Mbeki and the battle for the soul of the ANC (Revised Edition). Cape Town: Zebra Press Gumede W (2009) Participatory developmental planning for a democratic developmental state. Unpublished mimeo, June Kanungo RN (2001) Ethical values of transactional and transformational leaders. Canadian Journal of Administrative Sciences 18(4): 257–265. https://doi.org/10.1111/j.1936-4490.2001. tb00261.x Klare K (1998) Legal culture and transformative constitutionalism. South African Journal on Human Rights 14(1): 146–188. https://doi.org/10.1080/02587203.1998.11834974 KPMG (n.d.) The State vs Jacob G Zuma and Others: Forensic investigation; Draft report on factual findings. Accessed 17 October 2020, https://africacheck.org/wp-content/uploads/2016/06/ KPMG_report1.pdf Kraak A (2011) Horizontal coordination, government performance and national planning: The possibilities and limits of the South African state. South African Journal of Political Studies 38(3): 343–365. https://doi.org/10.1080/02589346.2011.623834 Ladkin D (2020) What Donald Trump’s response to COVID-19 teaches us: It’s time for our romance with leaders to end. Leadership 16(3): 273–278. https://doi.org/10.1177/1742715020929134 Le Roux M & Davis D (2019) Lawfare: Judging politics in South Africa. Johannesburg: Jonathan Ball Madonsela T (2014) Address by the Public Protector, in response to her critics. Public Protector House, Pretoria, 28 August 2014. Accessed 19 November 2020, https://www.polity.org.za/ article/pp-thuli-madonsela-address-by-the-public-protector-in-response-to-her-criticspublic-protector-house-pretoria-28082014-2014-08-29 Mandela N (1964) ‘I am prepared to die. Nelson Mandela’s statement from the dock at the opening of the defence case in the Rivonia Trial.’ 20 April 1964. Accessed 20 November 2020, http://db.nelsonmandela.org/speeches/pub_view.asp?pg=item&ItemID=NMS010&txts tr=prepared%20to%20die 96

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Mandela N & Langa M (2017) Dare not linger: The presidential years New York: Farrar, Strauss & Giroux Modiri J (2018a) Conquest and constitutionalism: First thoughts on an alternative jurisprudence. South African Journal on Human Rights 34(3): 300–325. https://doi.org/10.1080/02587203.2 018.1550939 Modiri J (2018b) Introduction to special issue: Conquest, constitutionalism and democratic contestations. South African Journal on Human Rights 34(3): 295–299. https://doi.org/10.108 0/02587203.2018.1552415 Mureinik E (1994) A bridge to where? Introducing the Interim Bill of Rights. South African Journal on Human Rights 10(1): 31–48. https://doi.org/10.1080/02587203.1994.11827527 Naidoo V (2013) The challenges of policy coordination at a programme level: Why joining-up is hard to do. Development Southern Africa 30(3): 386–400. https://doi.org/10.1080/037683 5x.2013.817309 Peters BG (2018) The challenge of policy coordination. Policy Design and Practice 1(1): 1–11 Pikoli V & Wiener M (2015) My second initiation: The memoir of Vusi Pikoli. Johannesburg: Picador Africa Prempeh HK (2008) Progress and retreat in Africa: Presidents untamed. Journal of Democracy 19(2): 109–123. https://doi.org/10.1353/jod.2008.0036 Reboredo R (2019) A panacea for development? Megaprojects and the construction of state legitimacy in post-apartheid South Africa. African Geographical Review 38(3): 240–252. https://doi.org/10.1080/19376812.2019.1589734

Cases Corruption Watch NPC and Others v President of the Republic of South Africa and Others; Nxasana v Corruption Watch NPC and Others (CCT 333/17; CCT 13/18) [2018] ZACC 23; 2018 (10) BCLR 1179 (CC); 2018 (2) SACR 442 (CC) Democratic Alliance v President of South Africa and Others (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) Democratic Alliance v President of the Republic of South Africa and Others; Economic Freedom Fighters v State Attorney and Others (21405/18; 29984/18) [2018] ZAGPPHC 836; [2019] 1 All SA 681 (GP) Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (CCT 143/15; CCT 171/15) [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (31 March 2016) Minister of Health and Others v Treatment Action Campaign and Others (No 1) (CCT 9/02) [2002] ZACC 16; 2002 (5) SA 703; 2002 (10) BCLR 1075 President of the Republic of South Africa and Others v South African Rugby Football Association and Others (CCT 16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 South African Informal Traders Forum and Others v City of Johannesburg and Others; South African National Traders Retail Association v City of Johannesburg and Others (CCT 173/13; CCT 174/14) [2014] ZACC 8

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5

A normative approach to the minimum core: Minimum requirements for a life of dignity Gary Pienaar, Michael Cosser and Yul Derek Davids

This chapter seeks to establish the normative nature of a minimum core content of justiciable socioeconomic rights (SERs) as enshrined in the Bill of Rights in the Constitution of the Republic of South Africa, 1996. It explores the extent to which a minimum core content for any SER has been developed and proposes an approach and methodologies for the establishment of a minimum core for each SER where such content is absent. The discussion focuses on four SERs that respond to ‘basic needs’. The minimum core content represents the baseline of essential goods and services required for a person to live a life of dignity. The minimum core content includes the minimum service level standards that one ought to be able to expect from the state at any given time (because they are dynamic in response to socioeconomic development) in fulfilment of its obligations, in terms of section 7(2) of the Bill of Rights, to ‘respect, protect, promote and fulfil the rights in the Bill of Rights’. Research undertaken by the HSRC and the University of Fort Hare for the Constitutional Justice Project (CJP), commissioned by the Department of Justice and Constitutional Development (DoJ&CD), evaluated 43 landmark judgments by the Constitutional Court (CC) and the Supreme Court of Appeal (SCA). It was found that these decisions confirmed the Constitution’s normative framework of values and principles and that they have contributed to the realisation of SERs, upholding dignity and promoting greater equality and freedom. However, implementation was found to have varied widely. In several instances, litigants had not found recourse even years after the conclusion of the cases. The research revealed several reasons for non-implementation. In many cases, state departments did not have – or claimed not to have – the resources to fully implement court decisions (HSRC 2015). The research also found that 20 years after South Africa’s political transition, general public opinion reflected a downturn, as people had grown increasingly discontented with continuing deep socioeconomic inequality. Despite a Constitution that is hailed as one of the most progressive globally and the implementation of numerous policy programmes and initiatives, many respondents interviewed for the CJP project – as well as members of the public who have participated in the annual South African Social Attitudes Survey (SASAS) – felt that not enough had been achieved to realise the promise of fundamental human rights and to reduce income inequality, poverty, human underdevelopment and uneven access to services (HSRC 2015). The country’s democratic institutions appear increasingly fragile and disrespected and the Constitution has been described as reflecting a ‘sell-out’ settlement.1  101

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Figure 5.1 Views regarding the importance of government provision for the poor as required by the Constitution, South Africa, 2017 Percentage of respondents 100 3 80

15

3 7 34

60

3 9 30

36

3 10 33

Very important Important N  either important nor unimportant Not very important Do not know

40 20 0

41

Non-poor

51

55

49

Just getting along

Poor

South Africa

Source: HSRC (2017)

As one response to this policy vacuum and the resulting dissatisfaction regarding the pace of progressive realisation of SERs, as well as to the deepening cynicism regarding the legitimacy of the constitutional settlement, we have proposed a ‘reconceptualised Constitutional Dialogue’ (Bohler-Muller et al. 2019). Such a dialogue proposes an approach that involves conducting participatory evidence-based research, learning lessons from international comparative practice and engaging meaningfully with citizens regarding service delivery standards, priorities and options. The first such dialogue was hosted in Parliament on 24 October 2019 by the HSRC in partnership with the National Foundations Dialogue Initiative (NFDI) and the Institute for Justice and Reconciliation (IJR).2

Social attitudes towards government provision of services It is necessary at the outset to try to understand the nature, extent and location in society of this growing dissatisfaction over the democratic dividend. A key source of quantitative data for eliciting evidence to identify public opinion concerning the minimum core comes from the HSRC’s SASAS, a nationally representative survey series administered since 2003.3 The SASAS data series enables us to track public perceptions with regard to (among many other issues) the social justice domain included in the HSRC’s Transformative Governance Index (TGI), which is being progressively developed. This index measures citizens’ awareness of and satisfaction with their access to basic services such as adequate housing, healthcare, sufficient food and water, social grants and basic education – as per their constitutional rights.4

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SASAS provides data on whether South Africans fundamentally agree with the provisions of the Constitution and whether they feel it is important for government to provide basic services to the poor, as required by the Constitution. Figure 5.1 shows that there is almost universal acceptance of constitutionally guaranteed SERs. More than four-fifths (82%) of respondents to the 2017 survey felt that it was important that government provide for the poor, with 49% stating that this was very important and 33% saying it was important. Support for the Constitution in providing for the poor is also found among the non-poor. The majority (77%) of the non-poor were of the opinion that the government should provide for the poor in accordance with the Constitution. Although a lower proportion of the non-poor felt this was very important (41%), they did subscribe to the notion of distribution of resources and government support. In terms of evaluation of government performance in delivering on these SERs, respondents were asked: ‘How good or bad a job is government doing in ensuring that poor South Africans are provided with basic services?’ Figure 5.2 demonstrates that slightly more than a quarter of South Africans (28%) felt that the government was doing a good job or a very good job. A similar proportion (27%) were ambivalent, feeling that government was performing neither well nor poorly. A significantly larger proportion (42%) were, however, of the opinion that government was not faring well. Figure 5.2 also reveals considerable differences by self-rated poverty status. The respondents who categorised themselves as poor were most sceptical of government’s performance. Of this group, more than half (52%) felt that government was doing either a bad job or a very bad job. This in all likelihood reflects the reality of poor South Africans, for whom promises of basic services are seldom realised.

Figure 5.2 Views regarding government performance in providing the poor with basic services, South Africa, 2017 Percentage of respondents 100 12 80

23

60 40 20 0

33

Very good job 17 23

21

31

26 22

24 6 Non-poor

26 5 Just getting along

17 25

Good job N  either good nor bad Bad job Very bad job

27

20

23

4 Poor

5 South Africa

Do not know

Source: HSRC (2017)

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Of all three groups, the non-poor had the lowest level of scepticism, with only 12% stating that government was doing a very bad job. These results signal that delivering on SERs and addressing the challenges of poverty, unemployment and inequality will be increasingly critical factors for democratic consolidation in coming years and decades. The results also demonstrate the necessity for government to consult intended and actual beneficiaries when evaluating its delivery performance and when undertaking planning and budgeting to improve performance.

The normative nature of justiciable socioeconomic rights On the basis of the constitutional values of dignity, equality and freedom, the Bill of Rights entrenches a number of justiciable rights, including SERs designed to meet basic, or fundamental, human needs. However, these may be realised progressively over time and according to available resources. SERs include the right of ‘access to … adequate housing’ (section 26) and to (a) health care services, including reproductive health care; (b) sufficient food and water; and (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. (section 27) In recognition of the associated costs of realising these rights in the South African context, where the scale of the need is extensive and the available resources are limited, both sections 26(2) and 27(2) include an ‘internal limitation’ clause. It provides that ‘[t]he state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right’ (section 26[2]). The right to education contains no such limitation with regard to basic education (primary and secondary schooling) in section 29(1)(a), but the right to ‘further’ (tertiary) education is subject to a similar limitation. SERs intended to meet basic human needs immediately place pressure on the state to ensure that the progressive realisation of SERs proceeds with all due haste. Indeed, the provisions of section 237 of the Constitution emphatically reinforce the urgency with which SERs must be realised: ‘All constitutional obligations must be performed diligently and without delay’ (emphasis added). It is accepted, in accordance with the consistent tenor of constitutional jurisprudence, that ‘without delay’ should be understood to mean without undue or unreasonable delay. Here, then, enshrined in our supreme law, is an ethical standard for conduct and action to actualise constitutional values that give rise to the rights enshrined in the Bill of Rights. This, in our view, is a powerful rationale for asserting an ethical basis for good governance, defined as a coherent, coordinated, evidence-based plan, or roadmap, for the progressive realisation of SERs. Serving as milestones for measuring progress along the route are normative performance or delivery standards that provide transparent evidence of progress. 104

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Without a shared understanding of how we might recognise our destination, however, the journey becomes impossible. In which direction do we set off, which route do we choose to follow, and which vehicle is most effective? We suggest that constitutional values should define the destination, route and mode of travel. Thus, we must ask ourselves what we understand by dignity, equality and freedom. Foremost, perhaps, is dignity, because the Constitution recognises it as an inherent and irreducible characteristic of our humanity, one that cannot be diminished or removed (Ackermann 2004, cited in Davis 2009). What, then, is dignity, and what does it look like in more concrete terms? It has been suggested that it can be identified as ‘a decent life’, or a ‘life without struggle’.5 A former CC judge interviewed for the CJP ‘subscribe[d] … completely’ to the notion that ‘a certain basic provision for food and shelter is essential for human dignity’, and he did not think that ‘anything the [Constitutional] Court has said would contradict the view that there is a certain basic minimum’ (HSRC 2015: 61). However, there will always be tensions concerning choices and priorities.

Socioeconomic rights and the role of the courts Government has been criticised for its apparent inability to effect substantial change to the social and economic arrangements that characterised our apartheid past. The economy has not fared well in becoming more inclusive, creating employment and reducing poverty. Despite the constraints imposed on the judicial system by the constitutional requirement of a separation of powers between the branches of the state, as the protector and upholder of the Constitution the judiciary has also been accused of failing to ensure that government delivers on the SERs promised in the Bill of Rights. The state’s tardiness, in some instances, in achieving more than a minimal level of implementation is compounded by the fact that the courts have repeatedly declared themselves reluctant to define the minimum core content of SERs, such as in the decision on Government of the RSA and Others v Grootboom and Others (hereafter Grootboom).6 The courts see themselves as ill-suited to making complex, polycentric decisions with budgetary implications and are also reluctant to be perceived as breaching the boundaries of the separation-of-powers doctrine (McLean 2009; O’Regan 2012). The courts are thus concerned not to stray too far into what they view as the exclusively executive domain of policy-making, or the legislature’s lawmaking and budget allocation terrain.7  Nevertheless, in Grootboom the CC developed the ‘reasonableness test’ to provide clarity on the interpretation of the right to shelter, including in emergencies and regarding the shelter of children, as well as to explain whether or not (and when) individuals could claim tangible services from the state. This test was then further developed in Minister of Health and Others v Treatment Action Campaign and Others (No 2) (hereafter TAC 2),8 in which the CC again declined to adopt the minimum core approach to SERs generally, but accepted the need in this particular instance 105

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to provide direction where the executive was failing to act in the face of a health emergency. In both instances, the CC was criticised for failing to take the opportunity to give substantive content to the rights to housing/shelter and healthcare specifically (sections 27 and 28 of the Constitution). Critics argue that this has resulted in the CC only partially protecting these SERs (Dugard 2008; Liebenberg 2014). Although the concept was subsequently revived in legal argument, the CC again declined to adopt the minimum core content approach in Mazibuko and Others v City of Johannesburg and Others,9 in relation to the right of access to ‘sufficient’ water, and in Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others10 concerning sanitation and lighting. Judicial remedies in SER litigation have avoided conferring individual rights on demand, given the pressures on government arising from limited state resources. Instead, they have defined the rights as collective and programmatic – that is, to be realised in a progressive manner through a government programme assessed by the courts as being reasonable. The courts have explained that our Constitution envisages a democratically elected government led by an ‘energetic executive’ leading the debate on policy and legislative reform and making associated budget allocations.11 An appropriate role for the courts is to monitor and to guide – except in extreme circumstances where, for whatever reason, a persistent and urgent policy vacuum exists. In such circumstances, the courts have indicated that, as the ultimate guardian or guarantor of the Constitution and the Bill of Rights, they are compelled to act. One such instance was the decision by the CC in the TAC 2 matter. A more recent example in which the CC was compelled to act decisively was in Black Sash Trust v Minister of Social Development and Others.12 Here the CC intervened by instructing and supervising government on the steps to timeously conclude a contractual agreement to ensure the continued payment by the South African Social Security Agency (Sassa) of social grants after 31 March 2018. Shanelle van der Berg recently proposed that this type of polycentric decision can be appropriately facilitated by the courts by means of the creative use and application of ‘effective’ remedies, which the Constitution requires the courts to provide (2019). We find ourselves in full agreement with the substance of Van der Berg’s inclusive and evidence-based approach to finding effective solutions and remedies, for which she finds persuasive philosophical authority in Amartya Sen’s and Martha Nussbaum’s ‘capabilities’ approach (Nussbaum 2000, 2011; Sen 1999, 2009). However, we are unable to endorse the proposal that the courts should be the primary location for what seems likely to be an extensive and lengthy fact-finding exercise. Evidence regarding the circumstances of the litigants can be tendered relatively easily. However, the proposed examination of the circumstances of everyone in the same or similar positions, and the thoroughgoing interrogation of the reasonableness of government’s budgetary and other resource allocations, strikes us as a far more complex and time-consuming exercise. The practical effect of this will be to stall the litigation and, potentially, clog up the court roll. 106

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By contrast, therefore, we propose that this necessarily detailed and inclusive examination and consideration of the reasonableness of government’s programme for the progressive realisation of the SER in question should be undertaken elsewhere – in and through the reconceptualised constitutional dialogue proposed previously (Bohler-Muller et al. 2019). The process of identifying the minimum core should entail a systematic and participatory investigation into the extent and nature of norms and standards development across government departments responsible for facilitating the realisation of basic human rights as per the Constitution. Further, it should include a review of the adequacy and efficacy of those norms and standards that have been developed. There are several objectives underlying this proposed alternative. First, it would mean that more time is available, whereas the courts’ time is constrained. Second, this alternative would enable a broader range of stakeholders to engage in an evidence-informed and inclusive process to identify the minimum core content of all SERs. Third, confrontational litigation in order to secure the realisation and enjoyment of SERs would, ideally, become increasingly less necessary. Finally, this alternative accepts the constitutional responsibility allocated to the courts to be the final arbiters of whether the substantive content of SERs meets the standards of the constitutional values of dignity, equality and freedom. In short, the results of this extensive, participatory and evidence-based polycentric exercise can be presented to the court that is tasked with adjudicating a particular matter. We submit that this approach is consistent with the views of David Bilchitz, who has argued that SERs in the Bill of Rights are stated at an abstract level. In giving content to the right, the court engages in the process of specifying general principles that define the obligations placed upon the state by the right … Thus, the role of the court in this respect would be to set the general standard that must be met in order for the state to comply with its minimum core obligation. (2002: 487–488) Bilchitz further notes that a minimum core obligation ‘does not represent any particular means by which an SER can be achieved; rather, it represents the standard of socio-economic provision necessary to meet people’s basic needs’. These needs ‘can be understood on a general level as the universal preconditions necessary for human survival’ and those ‘generalised means to a great variety of possible goals and whose joint realisation, in the absence of special circumstances, is necessary for the achievement of more ultimate aims’ (2002: 488).13 This approach respects the constitutionally mandated separation of powers by continuing to afford considerable discretion to the democratically elected and accountable executive and legislature to define the detailed substantive content and the measures that must be taken to realise the right. However, it also provides the necessary support and accountability.

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A framework for determining the minimum core While there has been progress in achieving the Constitution’s vision of a transformed society,14 there is largely a policy vacuum around the responsibility for developing clearly defined minimum core standards.15 As observed above, costly, time-consuming and confrontational litigation has frequently been the result. The Studies in Poverty and Inequality Institute (SPII) has reported that the CC’s reluctance to define the minimum core content of SERs has contributed to the absence of agreed norms and standards in government policy for making these rights real. As a result, poor and vulnerable people living in South Africa do not know what their rights mean in practice (Dawson & McLaren 2015). The Constitution contains the foundation for the framework for realising each SER. The Preamble states that the objective of the Constitution is, in part, to • heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; • lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; • improve the quality of life of all citizens and free the potential of each person … (emphasis added). Section 1 sets out the country’s founding values, including ‘(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms’ (emphasis added). This foundation should permeate and infuse each procedural and substantive element of the minimum core for each SER.

International standards and reporting obligations Against the background of the constitutional framework and the understanding of the role of the courts as set out above, how might we start to address the remaining gap in public policy and public understanding? In terms of section 39(1)(b) of the Constitution, our courts are required, when interpreting the Bill of Rights, to refer to international law. Therefore, a useful place to start is to refer to established international law standards in the form of the UN International Covenant on Economic, Social and Cultural Rights (ICESCR; hereafter the Covenant) (UN 1966), to which South Africa is a signatory. In addition, the UN’s Committee on Economic, Social and Cultural Rights (CESCR; hereafter the Committee) of the UN’s Economic and Social Council (ECOSOC; hereafter the Council) has issued several General Comments (GCs) as guidance concerning the minimum core content of SERs.

The International Covenant on Economic, Social and Cultural Rights South Africa ratified the ICESCR in 2015, which requires the country to report to the UN Committee on the progress made to realise SERs (OHCHR 1989). The 108

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wording of Article 11.1 of the Covenant is pertinent: ‘The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions’ (OHCHR 1966; emphasis added). South Africa’s first report to the Committee, submitted in 2017, stated that the NDP [National Development Plan 2030] forms the cornerstone of South Africa’s economic and socioeconomic development strategy and policies. No political democracy can survive and flourish if the mass of our people remain in poverty, without land, without tangible prospects for a better life. Attacking poverty and deprivation must therefore be the first priority of a democratic government. (CESCR 2017: para. 19; emphasis added) The above statement is also recognised by the Reconstruction and Development Programme (RDP) of 1994. Consistent with this appreciation, the UN requires that states parties to the Covenant recognise the right of everyone to an ‘adequate’ standard of living for themselves and their family, including ‘social security, including social insurance’; ‘adequate food and freedom from hunger, clothing and housing’; the ‘continuous improvement of living conditions’; ‘the highest attainable standard of physical and mental health’ and compulsory free primary and progressively free secondary education (OHCHR 1966: Articles 9, 11.1, 12.1, 13.2). While the Covenant itself does not provide explicitly for the right to adequate water and sanitation, GC 15 on the right to water notes, among other things, that ‘[t]he right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival’ (OHCHR 2003: para. 3). Moreover, the Committee has previously recognised that water is a human right implicitly contained in Article 11, paragraph 1 of the Covenant.16 The right to water is also inextricably related to the right to the highest attainable standard of health17 and the rights to adequate housing18 and adequate food.19 The right should also be seen in conjunction with other rights enshrined in the International Bill of Human Rights, foremost amongst them the right to life and human dignity. Certainly, our Constitution’s Bill of Rights explicitly recognises the right to access to adequate water (section 27), and our courts have recognised the links between water, health and hygiene by recognising the right to sanitation.20

General comments by the UN Committee on Economic, Social and Cultural Rights Guidance concerning the normative substantive content of the minimum core of SERs, as well as the normative standards for the process of developing, identifying and monitoring the realisation of that content, can be found in GCs issued by the Committee (and published by the OHCHR).21 The Committee has issued GCs 4 and 7 on housing and evictions (OHCHR 1991; OHCHR 1997), GC 12 on food 109

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(OHCHR 1999a), GCs 11 and 13 on education (CESCR 1999; OHCHR 1999b), GC 14 on health (OHCHR 2000), GC 15 on water (OHCHR 2003) and GC 19 on social security (OHCHR 2008). As the Covenant envisages that the enjoyment of these rights will be realised progressively over a period of time, GC 1, Reporting by States Parties, encourages the adoption of benchmarks and goals against which progress can be objectively measured by the public and by the Committee (OHCHR 1989: paras 5, 6). Here is a clear recognition of the need for a state party to give substantive meaning to the content of a right, with ‘adequacy’ being the equivalent of the minimum core as the goal to which the state commits itself. The GCs also indicate that progress can be measured in a transparent and participatory manner only if that goal is identified and defined, and that progress can be effectively planned only if benchmarks or milestones are identified and defined. Indeed, GC 3, The Nature of States Parties’ Obligations, refers to Article 2.1 of the Covenant when it explains, based on the extensive experience of the Committee and its predecessor, the necessity of a defined minimum core: ‘[T]he Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party.’ The Committee explains pertinently that if the Covenant ‘were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être’ (OHCHR 1990: para. 10). GC 3 discusses the need identified in Article 2.1 of the Covenant for states parties to ‘take the necessary steps’ to achieve their minimum core obligations. While recognising that the full realisation of particular rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant’s entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant. (OHCHR 1990: para. 2; emphasis added) It is submitted, therefore, that the guidance in GC 1 and GC 3 provides a clear and convincing basis for the development of a detailed roadmap for achieving the ‘benchmarks’ that together define the goal of the minimum core. Further, that roadmap should contain deliberate, concrete and targeted ‘steps’ or milestones that facilitate the transparent monitoring of progress towards that goal. Each of the GCs on particular SERs contains some guidance on the normative content of the minimum core for that SER, with a focus on what is conducive to ‘living a life of dignity’ (OHCHR 2000: para. 1). A further important procedural aspect of the guidance is the ‘participation of the population’ in all related decision-making at community, national and international levels (OHCHR 2000: para. 11). GC 14, in common with other GCs, identifies certain ‘interrelated and essential elements, the precise application of which will depend on the conditions prevailing in a particular State party’ (OHCHR 2000: para. 12). These elements, which amount to normative criteria or indicators of the minimum core, are, in summary: availability, accessibility (including 110

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non-discrimination, physical accessibility, economic accessibility or affordability, and information accessibility), acceptability and quality (OHCHR 2000: para. 12). This set of indicators is known as the AAQ (access, adequacy and quality) formula. The SPII, in collaboration with the South African Human Rights Commission (SAHRC), has developed an alternative, truncated version of a set of indicators for assessing and monitoring the realisation of each SER. Table 5.1 sets out an example of the application of the SPII’s AAQ formula to the right to water and sanitation (Motsoeneng 2016).22

Monitoring and evaluation According to guidance in the GCs, monitoring and evaluation (M&E), like the process of developing the evidence base for the minimum core, should be comprehensive, objective, open, transparent and participatory, including especially those whose rights and interests are most pertinently affected. Comprehensive and accurate M&E requires appropriate and relevant data. Notably, in the Committee’s Concluding Observations (COBs) in respect of South Africa’s first progress report, concern was expressed ‘at the lack of disaggregated statistical data’ relating to South Africa’s fulfilment of SERs, which makes it difficult to monitor the level of actual enjoyment of these rights in the country (CESCR 2018: para. 11). The Committee therefore recommended that South Africa improve its data collection system with a view to collecting comprehensive, reliable and disaggregated data, as this would enable the transparent and objective assessment of the level of enjoyment of Covenant rights. To this end, it recommended that the capacity of Statistics South Africa (Stats SA) be enhanced (CESCR 2018: para. 11). Table 5.1 Indicators of the right to water and sanitation, as per the AAQ formula of the SPII Access

Adequacy

Quality

Economic access: Affordability • Amount spent on water by lowest income decile vs highest income decile • Number of households accessing free basic water and free basic sanitation

Availability: Distribution • Alternative drinking water sources • Usability of sanitation facilities

Infrastructure: Maintenance • Service standard • Frequency of disruption in sanitation facilities

Physical access: Water supply • Number of households with water supply infrastructure of RDP standard • Access to free basic water • Access to free basic sanitation • Number of households with no sanitation • Type of toilet

Availability: Reliability • Number of water disconnections • Length of disconnections • Disruption in service • Removal of waste from shared bucket toilet

Infrastructure: Hygiene • Acceptability • Number of complaints about odour and taste • Type of sanitation facility

Source: Adapted from Motsoeneng (2016: 19)

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In a further clear indication of the need for and scope of the minimum core content of each SER to be more clearly defined, GC 14 stipulates that the ‘framework law should establish national mechanisms for monitoring the implementation of national … strategies and plans of action’ (OHCHR 2000: para. 56; emphasis added). The framework law should ‘identify the resources available to attain defined objectives, as well as the most cost effective way of using those resources’ (OHCHR 2000: para. 53; emphasis added). Further, the law should contain provisions on the targets to be achieved, the timeframe for their achievement, the means by which benchmarks can be achieved, and indicators of progress (OHCHR 2000: paras 57, 58). The ‘factors and difficulties’ that may affect implementation of obligations must also be identified. The framework law should indicate ‘the intended collaboration with civil society, including … experts, the private sector and international organizations; institutional responsibility for the implementation of the … national strategy and plan of action; and possible recourse procedures’ (OHCHR 2000: para. 56; emphasis added).

The status quo in South Africa South Africa indicated in its first Country Report to the Committee in 2017 that the 2014–19 Medium-Term Strategic Framework (MTSF) (South Africa 2014) would constitute the first five-year implementation phase of the NDP (CESCR 2017). Amongst the 14 priority outcomes around which the MTSF is structured are the following: • Outcome 1: Quality basic education • Outcome 2: A long and healthy life • Outcome 7: Vibrant, equitable, sustainable rural communities contributing towards food security for all • Outcome 8: Sustainable human settlements and improved quality of household life • Outcome 13: A comprehensive, responsive and sustainable social protection system. (CESCR 2017: para. 23) The South African government’s Country Report explained that it sought to realise rights, both immediately and progressively, by planning for their implementation – the Department of Planning, Monitoring and Evaluation (DPME) having been established precisely to institutionalise long-term planning within the state (CESCR 2017: para. 43). The report did not explain that line-function departmental annual performance plans (APPs) usually include short-term programmes and targets relevant to SERs, as do municipal integrated development plans (IDPs). In addition, departmental three-year rolling strategic plans and each administration’s five-year MTSF and Medium-Term Expenditure Framework (MTEF) present medium-term plans and budgets that support more sustained efforts in this regard. But many of these plans lack detailed, evidence-based and broadly consulted norms and standards

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that set out what level and quality of service the public is entitled to expect from the democratically elected, accountable and responsive government envisaged in section 1(d) of the Constitution. Some departments have recognised the need to develop such norms and standards. However, it is not clear to what extent they are the result of adequate or broad consultation – including intended or actual beneficiaries – and other necessary research, consistent with the guidance in the GCs. Indeed, questions that arise from a consideration of these documents are whether there is an evidence base underpinning the norms and standards; whether there was any consultation informing them (for example, whether surveys were undertaken or focus groups held that included people other than the public servants sometimes named in documents); and whether mechanisms exist for implementation and for monitoring and evaluating their impact.

Existing norms and standards: Progress towards realising the minimum core This section discusses examples of existing norms and standards developed by line-function departments responsible for the realisation of SERs. We consider the norms and standards documents, with several proposed criteria for what we believe could constitute an acceptable set of norms and standards that amounts to a minimum core or basic floor content of SERs. The proposed standard of acceptability in this context is established primarily by whether, overall, the document helps establish a reasonably clear, comprehensive and enforceable minimum core standard of service delivery and enjoyment of the particular SER. This minimum core standard should enable a beneficiary entitled to that service to understand the current and future substantive content of the right in terms of a government plan or programme. It is suggested that this level of detail is necessary for the plan or programme to be appropriately adjudged by a court to comply with the international standard of ‘adequacy’ and with the ‘reasonableness’ test adopted by South African courts.23 As mentioned, we propose several further criteria for determining whether an ’adequate’ and ‘reasonable’ minimum core standard has been established. The Constitution accepts that most SERs are susceptible to progressive realisation over time, but an essential minimum core must be immediately available for survival. It should thus be recognised that what the proposed or current norms and standards offer is provisional or interim in nature; it therefore may not yet be consistent with the constitutional values of dignity, equality and freedom. This recognition of necessity implies that there must be some level of detailed provision in the plan for movement and progress, measured by the time-bound achievement of milestones set out in a roadmap, towards a set of norms and standards that are indeed consistent with these constitutional values. It also entails the provision of evidence to the courts

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and to the UN Committee that the current minimum core is indeed adequate and reasonable in all the relevant circumstances (OHCHR 1989; OHCHR 1990: para. 4). The minimum core content of each SER must be identified, both as it is now and based on current perspectives on and knowledge of likely future needs, technological developments and financial resources – what the content is to be at each milestone and upon arrival at an agreed ultimate destination. ‘Arrival’ is admittedly a moving target, given, for example, the dynamism of human knowledge and technological and socioeconomic developments – a reality which is acknowledged by international jurisprudence. For that reason, regular review, and not merely M&E, is essential. Finally, all of these elements of the minimum core content of each SER must be evidence-based. Here it must be recognised that a vital source of evidence would be a process of meaningful public participation based on the proactive provision of the necessary knowledge and information required for the development of an agreed short-, medium- and long-term plan of action.24 With this objective and these considerations in mind, four existing sets of norms and standards are considered and assessed for how closely they approximate this proposed model.

Health An explanation by the Infrastructure Unit Support Systems (IUSS), which appears in every publication of the health infrastructure norms and standards documentation, reads as follows: IUSS voluntary standard/guidance documents have been prepared as national Guidelines, Norms and Standards for the benefit of all South Africans. They are for use by those involved in the procurement, design, management and commissioning of public healthcare infrastructure. Many have been made mandatory via gazette and are clearly marked with this status on the front cover and in footers on each page. IUSS material may also be useful information and reference to private sector healthcare providers.25 (emphasis added) On 30 June 2014 the Department of Health (DoH) gazetted 54 separate infrastructure norms and standards under four headings: Clinical services, Healthcare environment, Support services, and Procurement and operation. All these standards have been approved and their implementation is therefore a requirement. Various caveats, however, absolve the implementers of these norms and standards from ultimate accountability. First, they are ‘voluntary standard/guidance documents’. Even though many have been ‘made mandatory via gazette’, the mandatoriness seems to reside in their gazetting rather than in their application. Second, while ‘it remains incumbent on the relevant authorities and professionals to ensure that these are applied with due diligence’, deviations are possible provided that due process (‘deviations processes’) is followed. And third, while a Health Infrastructure Norms Advisory Committee ‘will be responsible for the periodic review and formal update of documents and 114

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tools’, no monitoring and evaluation process for the implementation of norms and standards is proposed. In a subsequent development, in July 2019 President Cyril Ramaphosa signed the Health Social Compact, which includes more detailed targets, timelines and service level standards (The Presidency 2019). Shortly thereafter, on 8 August 2019, the National Health Insurance Bill [B11–2019] was tabled in Parliament.26 The Bill declares that its objective is to establish a National Health Insurance (NHI) Fund in order to ‘achieve universal access to quality health care services in the Republic’, in accordance with the Preamble’s explicit reference to the obligations set out in Article 12 of the Covenant; to Article 16 of the African Charter on Human and People’s Rights (OAU 1981) and to section 27 of the Constitution.

Education The Department of Basic Education (DBE) acknowledges in the preamble to its Regulations Relating to Minimum Uniform Norms and Standards for Public School Infrastructure that ‘social investment in education is a responsibility of the Government’ (2013: 4). The word ‘social’ also appears in the Preamble to the Constitution, which seeks to ‘[h]eal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights’ (emphasis added). The objectives of the DBE regulations, set out in section 2, are: (a) to provide minimum uniform norms and standards for public school infrastructure; (b) to ensure that there is compliance with the minimum uniform norms and standards in the design and construction of new schools and additions, alterations and improvements to schools which exist when these regulations are published; and (c) to provide for timeframes within which school infrastructure backlogs must be eradicated. However, as in the case of the health infrastructure norms and standards, there are certain caveats to implementation. First, the norms and standards must be complied with within three, seven or ten years of the date of their publication (depending on the nature of the service to be delivered). Thus, as stated in section 4(3), schools built entirely of mud, asbestos, wood and metal must be ‘prioritised’ within three years; the availability of classrooms, electricity, water, sanitation, electronic connectivity and perimeter security must ‘reflect such prioritisation’ within seven years; and the norms and standards relating to libraries and laboratories for science, technology and life sciences must be ‘specifically [focused] on’ within 10 years. The language is non-directive: ‘prioritised’ and ‘focused on’. Second, all these areas of delivery are subject to what is ‘reasonably practicable’. Section 4(1)(b) thus cleverly repeats the phrase used in section 29(2) of the Constitution, conveniently in relation to education: ‘Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education 115

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is reasonably practicable’ (emphasis added). Reasonableness therefore becomes the ultimate standard which the DBE can use as an excuse for not dealing with infrastructure backlogs in schools. Nearly two years after the Regulations Relating to Minimum Uniform Norms and Standards for Public School Infrastructure were promulgated, Equal Education (EE) raised serious concerns with the Minister of Basic Education about vagueness and loopholes in the wording of the regulations, and expressed concern about the delay in releasing the provincial implementation plans. Due by 29 November 2014, these were released to the public only on 12 June 2015, following various petitions led by EE members. EE drew attention in their report to an ‘“escape hatch” which makes delivery of school infrastructure by the Department of Basic Education subject to resources and co-operation of other government agencies’.27 Commenting in March 2019 on the 2017 reports and plans – the latest available – EE made the following observations:28 • Provincial and national government data on school infrastructure remained inconsistent and in some cases even contained clearly contradictory information. • Provincial education departments blamed other government departments and entities for failing to provide school infrastructure, despite a court judgment having declared this escape clause to be inconsistent with the Constitution and the South African Schools Act (No. 84 of 1996) and thus ‘unlawful’ and ‘invalid’.29 • Provincial education departments submitted reports to the DBE that excluded ‘crucial information’ and did not adhere to a standard reporting template. • Having already missed the first norms and standards deadline of 29 November 2016, government was on course to miss the second deadline of 29 November 2020. However, in acknowledgement of the particular urgency of the norms and standards for safe and dignified sanitation in schools, President Ramaphosa undertook in a recent State of the Nation speech to ‘eradicate unsafe and inappropriate sanitation facilities within the next three years’ (Ramaphosa 2019b).

Social services The director-general of the Department of Social Development (DSD) claims in the foreword to Generic Norms and Standards for Social Welfare Services that ‘[s]ervice standards are a mechanism through which the DSD can measure its response to the needs of the needy, marginalised, poor and vulnerable groups of society’ (DSD 2013: 4). Measurement takes place through an M&E framework, which ‘should make provision for the continuous monitoring of inputs, outputs, process, and outcome and impact indicators to inform planning and decision making’ (DSD 2013: 8). This statement would seem to take a balanced approach towards service delivery, accommodating both inputs and outputs (including outcomes and impacts).

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In Generic Norms and Standards for Social Welfare Services four types of norms and their accompanying standards are identified: contextual, organisational, process and outcome. Process norms and standards have as their beneficiaries children, the youth, adults and older people. Outcome norms and standards are ‘end results’, describing the tangible results of the actions taken to improve beneficiaries’ current and future situation, as well as overall quality of life. They also describe the capacity of particular services to respond objectively to beneficiaries as a key outcome in monitoring and evaluating the quality of social welfare services. (DSD 2013: 11) Communities are meant to be involved in the planning and monitoring of services (DSD 2013: 17), which should include ‘continuous monitoring of client satisfaction’ (DSD 2013: 19). The four norms and their corresponding standards are devoted to such monitoring. Whether such M&E is practised by the DSD, notwithstanding the mention of norms and standards 52 times in its strategic plan for 2010–2015 (DSD n.d.[b]), is not known. In a presentation to the Social Development Portfolio Committee, titled ‘Strategic Plan 2015–2020 & Annual Performance Plans 2016/17’, the DSD claimed that it would ‘[a]ssess community development capability against Norms and Standards’ in 2016/2017 and ‘[f]acilitate implementation of norms and standards for community development’ in 2017/2018 and 2018/2019 (DSD n.d.[a]: 25). No account of such assessment or facilitation appears to be available. The UN Committee’s COBs expressed concern about several legislative and policy issues related to the quality of life of children and their broader circumstances, notably levels of malnutrition and the inadequacy of the child support grant (CSG). Discussing malnutrition and the right to food, the Committee expressed its concern at the high incidence of food insecurity and malnutrition in the State party, particularly among children. Given the fact that 12 percent of children lived in hunger in 2017 and 27 percent of children were suffering from stunting in 2016, the Committee is particularly concerned that the child support grant is set far below the food poverty line and that an estimated 18 percent of eligible children do not benefit from the grant due to a lack of documentation.30 The Committee expressed its further concern ‘at the lack of a framework law to ensure the right to food’ (CESCR 2018: para. 56). Against this background, the Committee recommended that South Africa increase the CSG at least up to the level of the food poverty line; ensure that all eligible children benefit from the grant; expedite the adoption of the Social Assistance Amendment Bill to increase the level of child support grant for orphaned and abandoned children living with relatives, for which

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it has already earmarked funds [and adopt] framework legislation protecting the right to adequate food and nutrition and develop a national food and nutrition security strategy. (CESCR 2018: 57)

Water and sanitation In its recent publication Inequality Trends in South Africa: A Multidimensional Diagnostic of Inequality 2017 (published in November 2019), Stats SA showed, with reference to the General Household Survey, that household access to water and sanitation remains low, notwithstanding improvements over a 16-year period. Access to sanitation had improved from 61% in 2002 to 83% in 2017 and access to water had improved from 68% to 74% over the same period (Stats SA 2019b). Access to water has shown only a 6 percentage point increase in 16 years, with a quarter of the South African population still not having access to water in their homes. Access to piped or tap water inside the home or on site (in the household precinct) is, unsurprisingly, more prevalent in urban areas than in rural areas, with urban dwellers having recorded an access level of 90% in 2002 and 89% in 2017,31 while rural dwellers had an access level of 4% in 2002 and 40% in 2017 (Stats SA 2019b). Notwithstanding the 36 percentage point increase in rural household access to water over the 16-year period, the differential is enormous. The sanitation picture is slightly better. The proportion of households with access to improved sanitation increased from 61% in 2002 to 83% in 2017.32 As in the case of access to water, however, the urban–rural difference is vast. In 2002, 85% of urban dwellers had access to improved sanitation, while only 23% of rural dwellers had such access. Despite a 40 percentage point increase between 2002 and 2017, fewer than two-thirds of households in rural areas (63%) had access to improved sanitation in 2017.33 This means that, according to the WHO’s definition of ‘improved sanitation’ (cited in Stats SA 2019b: 110), 37% of rural dwellers were exposed in one form or another to human excreta – largely, one would surmise, having to use buckets to deposit excreta in designated or even non-designated areas. The cited levels of access to water and improved sanitation, however, mask the situation on the ground. Only 64% of households have a reliable water supply service – a lower figure than in 1996 – with around 11% of water supply schemes being completely dysfunctional (DWS 2018: 19). The Department of Water and Sanitation (DWS) cites interruption in water supply (unreliability) and blocked and overflowing sewers as two of the major contributors to protest action and vandalism of property. Similarly, the figure for access to sanitation masks the reality of uneven service delivery, with some municipalities registering only 50% access to adequate sanitation facilities (DWS 2018: 19). Notwithstanding these revised statistics, the DWS aims to achieve 90% of ‘universal, sustainable sanitation provision’ by 2020 and 100% of such provision by 2030, and 90% of ‘universal, sustainable and reliable water provision’ by 2020 and 100% of such provision by 2030. Clearly, given the 16-year trajectory from 2002 to 2017, 118

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the 2020 targets are completely unattainable, nor is it clear why a further 10 years are needed to move from 90% to 100% provision. The caveat is that ‘[t]hese targets must be met in a sustainable manner, with effective operation and maintenance, so that the services provided are reliable over time, and are accessible to all people, including those living with disabilities’ (DWS 2018: 21; emphasis added). This effectively precludes the realisation of both targets by the deadlines indicated. One year prior to the drafting of the National Water and Sanitation Master Plan (which was launched only on 28 November 2019), the DWS gazetted the final version of the National Norms and Standards for Domestic Water and Sanitation Services (DWS 2017). The document is comprehensive in its coverage of norms and standards for water supply services and, separately, for sanitation services. Under water supply services, it deals with cross-cutting norms and standards for water services and with norms and standards for levels of water supply services. Under sanitation services, it deals with core norms and standards for sanitation services, norms and standards for levels of sanitation services, emergency sanitation services, sanitation services to private land, sanitation services to public institutions and places, and appropriate and improved sanitation infrastructure and facilities. Each norm, and its accompanying standard, specifies the goal, baseline and targets to be achieved in the short, medium and long term. The oversight and supervision of water and sanitation services supply is the responsibility of national government – that is, the DWS (NPC 2012). Such oversight involves monitoring, reporting on and regulating the provision of water and sanitation services. The emphasis of this section in the National Norms and Standards for Domestic Water and Sanitation Services is on the monitoring of water services institutions. The assumption is that the quantity and quality of water services provision will result in the overarching NDP goal of each household in South Africa having ready access to quality piped water by 2030. Almost as an afterthought, the document states: Communities have a role to play as well. It shall be the responsibility of the community members to inform their services provider of faulty systems, supply problems and abuses or misuse of the services. Members of the community shall monitor responsible use and prevent misuse, e.g. illegal connections, and help to distribute information to their neighbours. (DWS 2017: 74) Given the exceedingly high number of service delivery protests over water and sanitation services across the country (Morudu 2017), it is doubtful whether the ‘invitation’ to participate in community reporting of ‘faulty systems, supply problems and abuses or misuse of the services’ has had any effect. Volume 3: Schedule of Actions – the third volume of the National Water and Sanitation Master Plan – makes reference to M&E of the implementation of the plan: ‘This schedule is intended to be used for monitoring and evaluation of the achievements of the set targets, but should not be seen as a monitoring and evaluation 119

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tool’ (DWS 2018: 1-1; emphasis added). Beyond this, Volume 3 ‘[a]llow[s] for proper monitoring and evaluation of achievements’ and ‘[a]llow[s] for monitoring of the performance of responsible parties for each action’ (DWS 2018: 1–2). The absence of a ‘monitoring and evaluation tool’ in the National Water and Sanitation Master Plan, together with the expectation that communities will effectively monitor the provision of water and sanitation services through playing a fault-reporting role, calls into question the capacity of the DWS to monitor and evaluate a system it has so painstakingly spelled out in the master plan. Arguably, independent monitoring of progress towards the realisation of the NDP goal of universal water supply by 2030 is needed if the Constitution’s prescript in section 27(1)(b) – that everyone has the right to have access to water – is to be adhered to.

Integrated planning, implementation and impact of norms and standards What emerges from each of these four accounts of norms and standards is the actual or implied discrepancy between policy and impact. While quality assurance of the implementation of the norms and standards is a feature of policy, the focus appears to be on M&E of implementation, without due regard for the impact on the people the policy is meant to serve as measured by changes in their life circumstances and living conditions as a result of implementation – in other words, outcomes. Two factors seem to hamper implementation. The first – as we saw in the case of water and sanitation – is what we might call governmental separation of powers: local government and, to a lesser extent, provincial government are responsible for implementation, while national government is responsible for quality assurance. There are bound to be disruptions in service delivery, if not a failure of the system, when implementation and M&E are separated. The second – as we saw in the case of education – is the ‘escape hatch’ that ‘makes delivery of school infrastructure by the Department of Basic Education subject to resources and co-operation of other government agencies’.34 As if in response to the ‘escape hatch’, the DPME recently drafted the Integrated Planning Framework Bill [B–2018]. In sections 6(1) and 6(1)(a), the Bill compels the minister to ‘prescribe norms and standards for planning, monitoring and evaluation and development’ – norms and standards that ‘reflect the national policy and national development priorities described in the National Development Plan’. In addition, section 23(2) states that the minister must prescribe ‘mechanisms to monitor the performance of all organs of state in the national sphere of government against the indicators and targets determined in their plans’. According to section 23(3)(h), these mechanisms must provide, amongst other things, for ‘an appropriate intervention for failure to implement the National Development Plan or for poor performance, where necessary’. Again, however, there is no mechanism for measuring the impact of these norms and standards on the improved living conditions and life circumstances of the people they are designed to serve. 120

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It is worth mentioning, finally, that these draft integrated planning norms and standards come 25 years into South Africa’s democracy, and that as early as 2004 the HSRC had identified the need for joined-up policy as the key means to unlock service delivery (Kraak 2004). Those pleas fell on deaf ears: it has taken another 16 years for government to recognise the need for integrated governance.

A methodology for developing and monitoring implementation of norms and standards In order to report on South Africa’s progress in realising SERs, several questions need to be raised, including: What is the baseline we work from? What is the minimum set of resources to which people are entitled in order to survive with some level of dignity, to improve their living conditions and to free their potential; in other words, who is entitled to what? This is the minimum set of resources or services, as promised by the Constitution, to which people are entitled and which are consistent with human dignity and social justice. The subsections that follow outline some of the methodologies that might expedite progress towards the realisation of SERs.

Constitutional dialogue We believe that it is necessary to identify – using mixed methodologies and an inclusive, collaborative and enabling approach – the available evidence of • the current minimum core content of each SER, as proposed by government; • whether this minimum core content is realised in practice; • whether the identified and actual service delivery standards are acceptable to beneficiaries; and • the agreed minimum core standards that can and should be in place in 5, 10 and 15 years’ time, given current and emerging realities and trends, as well as certain assumptions and scenarios. The previous section considered the development of norms and standards towards the realisation of four basic rights in the Constitution. Not only do these norms and standards need to be interrogated further, particularly in relation to implementation and evaluation of their impact; other basic rights in the Bill of Rights in the Constitution need to be considered for norms and standards development. The key role-players in South Africa’s project to achieve the Constitution’s vision of a transformed society are traditionally understood to be the three branches of the state: the executive, the legislature and the judiciary (Klare 1998; Mureinik 1994). In addition, given the ‘horizontal’ application, albeit differentiated, of the Bill of Rights to individual and juristic (for example, corporate) persons (section 8[2]), each sector of society can make a vital contribution to a collective effort to realise social justice in our unequal country. This collective effort, the CJP envisaged, could take the form of a reconceptualised and more inclusive ‘constitutional dialogue’.35 The Constitution requires informed, participatory, responsive and accountable governance, and its Bill

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of Rights applies to relationships both between government and all people in South Africa and between individuals, civil society and private companies. All of these actors ought to be consulted so that they can contribute to finding solutions to the country’s widespread poverty and extreme inequality, including establishing the minimum core content of SERs.  These stakeholders can partner with one another to identify, commission and undertake collaborative research to inform evidence-based policies that target the transformation of economic and social relationships. Such evidence will help to provide clear guidance regarding the minimum core content of SERs intended to address fundamental human rights, needs and wellbeing. There is a need to engage in conversations with communities, officials, experts and civil society about their experiences, their expectations and their research regarding what is achievable through collaborative efforts. It is also necessary to scrutinise government policy, budgets and reports for current practice, and court decisions for any relevant guidance. Comparable good practice globally should also inform the development of minimum core standards (Pienaar et al. 2018). Former justices interviewed for the CJP supported the idea of such constitutional dialogue. One former CC judge highlighted the need for engagement also to effectively implement and enforce court orders. He noted: ‘In my view, courts are not in opposition to the executive and the legislature. I think [that] … sometimes that dialogue creates a coordinated role for all of them to ensure [that], in that particular case … rights are implemented’ (HSRC 2015: 60). More recently, in an opening address at a 2019 conference to commemorate 25 years of democracy, President Ramaphosa recognised the need for a broader social dialogue: This conference forms part of a broader social dialogue that should enrich our understanding of the last 25 years and that contributes to a common vision and programme for the next 25 years. Such engagement is essential if we are to forge durable and lasting social compacts across society to attain our developmental objectives. (Ramaphosa 2019a; emphasis added) Based on the CJP findings, in 2016 the HSRC initiated a research project to develop the TGI. This project seeks to collaborate with other interested stakeholders to assemble a body of evidence to support the development of a multiyear index. The aim of the index would be to help spur social accountability and responsiveness – as required by section 195, ‘Basic values and principles governing public administration’, of the Constitution – in respect of the more expeditious realisation and enjoyment of SERs. One of the key objectives of the project is to enable stakeholders to collaboratively develop a roadmap towards full enjoyment of SERs and to collectively determine milestones that will help track efforts to address the overarching challenges of poverty, inequality and exclusion in South Africa (Pienaar et al. 2017). That roadmap and accompanying milestones might follow the development and refinement by government line-function departments of norms and standards towards the 122

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realisation of all fundamental human rights in the Constitution. The intention is not to duplicate the efforts government has already made towards establishing the minimum core content of certain rights, but to assist in completing the project.

Participation and consultation as part of a redefined constitutional dialogue South Africa’s constitutional and legal frameworks emphatically identify our polity as a consultative and participatory democracy, with a central role enshrined for the right of active citizens to participate in government planning, budgeting and policy-making, and decision-making more generally. Government has a reciprocal duty to facilitate and enable such participation and contributions. These frameworks provide many different opportunities that ought to be effectively used for gathering information about people’s needs and priorities, and about their actual experiences of the service delivery that is supposed to help realise SERs. From a legal perspective, the CC has since 1994 made a number of pronouncements on public participation in public interest litigation cases related to issues such as housing, the provision of basic services, public participation in legislative processes,36 and the demarcation of municipalities. Notably, the CC has contributed a great deal to a developing jurisprudence related to the right to housing and evictions in South Africa. (This is because evictions – by municipalities and private owners – most likely lead to immediate suffering as a result of the spectre of homelessness facing evictees, who are usually particularly vulnerable.) ‘Meaningful engagement’ has been emphasised in a series of judgments dealing with housing and evictions, beginning with Port Elizabeth Municipality v Various Occupiers (hereafter PE Municipality).37 In that case, the CC focused on the importance of engagement and mediation as vital legal mechanisms in eviction proceedings and housing policy. In Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others,38 the CC developed and provided content for the concept of meaningful engagement, providing reasons for its decision to order meaningful engagement and elaborating on what this form of engagement would entail. Overall, the CC has emphasised that meaningful engagement should ordinarily take place before eviction proceedings have been instituted. The CC has not expanded its jurisprudence on meaningful engagement to areas outside the domain of housing and related matters, but there is the potential for these principles to be applied to all circumstances involving public participation, as they involve the same values and principles. Generally, as case law has developed, the CC has provided pointers that should be considered in all instances of public participation and citizen engagement. The elements of good faith and mutual respect stand out in this regard, and especially the recognition of the humanity and dignity of the poor and vulnerable – ubuntu, as Justice Sachs described it in the PE Municipality case. It seems appropriate that these two ethical criteria should characterise the way in which the proposed reconstituted constitutional dialogue is undertaken.

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Participatory methodologies for data collection include community audits or scorecards, which focus on assessing the level and quality of service delivery at a local level. Another useful participatory methodology is citizen-based monitoring (CBM), also referred to as community-based monitoring, which was developed by the DPME in consultation with civil society and endorsed by Cabinet for use by local government and service delivery line-function departments. When adopting the Framework for Strengthening Citizen–Government Partnerships for Monitoring Frontline Service Delivery (The Presidency 2013), Cabinet resolved that ‘government departments involved in service delivery to the public adjust their monitoring and evaluation frameworks to include mechanisms for incorporating the views and experiences of citizens on service delivery’. It is important to emphasise that CBM is ‘not a once-off event, but an iterative process of linking citizen feedback to service delivery improvement. Over time, this has the potential to make an important contribution to strengthening active citizenship and building a capable and development[al] State’ (The Presidency 2013: ii). Another complementary and participatory methodology suggested is to convene a series of focus groups that bring together ‘ordinary people … across the lines that divide us’ in carefully chosen locations around the country, with the objective of ‘allow[ing] them to agree on the things that are necessary to live a decent [or ‘dignified’] life, a life without struggle’.39 The former public protector, Adv. Thuli Madonsela, has proposed a ‘Social Justice Musa-Plan’ as ‘part of consultative processes aimed at the design and implementation of a comprehensive national [social justice “accelerator”] plan’, akin to America’s post-World War II Marshall Plan for European reconstruction.40

Conclusions As this chapter has shown, while preliminary steps have been taken to identify and develop the minimum core content of SERs in the Constitution, the journey towards the realisation of human rights for all is at an early stage in South Africa’s young democracy. Norms and standards for healthcare, water and sanitation, social security and education infrastructure have been drafted, but they are incomplete, including in terms of the systems and process required for monitoring their implementation and evaluating their impact. Understanding the extent to which other rights specified in the Constitution have been realised is contingent upon norms and standards being drafted, consultatively, to give them substance. The consultative nature of norms and standards development is critical, in terms not only of citizen engagement in the drafting process – based on citizens’ lived experience and what might constitute legitimate expectations of ‘adequacy’ – but also of citizens’ ability to hold government to account in delivering services measured against those norms and standards. Such engagement arises from the constitutional dialogue we have proposed. We argue that the notion of constitutional dialogue, as currently understood to take place between the three branches of the state, needs

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to be revisited with a view to developing a more sustained, concerted, deliberate and collective effort. This combination of efforts by the state, the private sector and civil society, understood broadly, is necessary to chart a clear way forward. It is required if we are to identify and describe the objective of a transformed society based on the normative minimum core content of SERs that adequately and appropriately respond to inequality and poverty by urgently meeting the basic needs of the most vulnerable. A reconceptualised constitutional dialogue aims to clarify the responsibility of the state as a whole to act with purposeful and coordinated determination to fully realise South Africa’s democratic dividend. Ideally, such a (semi-institutionalised or ongoing) dialogue would reduce the need for extensive and time-consuming litigation that further delays meeting the desperate and pressing needs of the poor and vulnerable. In any event, the coordinated gathering, analysis and synthesis of information through this broad, inclusive mixed-methodology dialogue will provide evidence of the substantive minimum core of SERs. This, in turn, can both help to inform the public of the meaning of their rights and support the courts to make informed decisions in the absence of adequate policy formulation or appropriate implementation. Notes 1 Devenish G, The legitimacy of the Constitution of 1996, Voices 360, 19 September 2018. Accessed November 2019, https://www.voices360.com/community-development/thelegitimacy-of-the-constitution-of-1996-17137801 2 See Teagle A, The power of constitutional dialogue: Bringing the voice of ordinary South Africans inside the walls of parliament, HSRC Review. Accessed November 2019, http://www.hsrc.ac.za/en/review/hsrc-review-dec-2019/power-institutional-dialogue 3 From a methodological perspective, each round of the survey is designed to yield a representative sample of 3 500 South Africans aged 16 and older (with no upper age limit), in households spread across the country’s nine provinces. Individuals are selected by strict random probability methods at every stage. The 2011 Population Census is used as a sampling frame. First, small area layers (SALs) are drawn, with probability proportional to size, as primary sampling units. In the second sampling stage, a predetermined number of individual dwelling units (or visiting points) is drawn, with equal probability in each of the drawn dwelling units. Finally, in the third sampling stage a person is drawn, with equal probability, from all eligible persons in the drawn dwelling units. 4 Other relevant sources of quantitative data include the General Household Survey, published periodically by Statistics South Africa (Stats SA), and Stats SA’s recent Subjective Poverty in South Africa: Findings from the living conditions surveys, 2008/2009–2014/2015 (2018b). 5 A life without struggle in SA is achievable, The Citizen, 20 August 2019. 6 (CCT 11/00) [2000] ZACC 19 (4 October 2000). 7 See the Money Bills Amendment Procedures and Related Matters Act (No. 9 of 2009). 8 (CCT 8/02) [2002] ZACC 15 (5 July 2002). 9 (CCT 39/09) [2009] ZACC 28 (8 October 2009). 125

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10 (CCT 31/09) [2009] ZACC 33 (19 November 2009). 11 Certification of the South African Constitution 1996 (4) SA 744 (CC) para. 112. 12 (Freedom Under Law Intervening) (CCT 48/17) [2018] ZACC 36; 2018 (12) BCLR 1472 (CC) (27 September 2018). 13 Bilchitz cites, among others, Nussbaum and Sen (1993: 41), ‘where Sen talks about the importance of satisfying certain crucially important functionings up to minimally adequate levels’ (2002: 488). 14 See, for example, Stats SA (2018a, 2019a). 15 See Bilchitz (2003) for an early analysis of the Court’s decision in TAC 2. 16 See GC 6 (OHCHR 1995) and GC 15 (OHCHR 2003). 17 See GC 14 (OHCHR 2000) and Article 12.1 of the Covenant. 18 See GC 4 (OHCHR 1991); Special rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context. Accessed November 2019, https://www.ohchr.org/EN/Issues/Housing/ Pages/HousingIndex.aspx 19 See OHCHR (2010). 20 See, for example, City of Johannesburg v Rand Properties (Pty) Ltd and Others (253/06) [2007] ZASCA 25; [2007] SCA 25 (RSA); [2007] 2 All SA 459 (SCA); 2007 (6) SA 417 (SCA) (26 March 2007). See also City of Johannesburg v L Mazibuko and Others (489/08) [2009] ZASCA 20 (25 March 2009) and Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others (CCT 31/09) [2009] ZACC 33 (19 Nov 2009). 21 See the UN treaty body database at https://tbinternet.ohchr.org/_layouts/15/ treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11 22 For an initial, in-principle discussion of the development and proposed use of the AAQ formula, see Dawson and McLaren (2015). 23 The reasonableness test was established by the CC in Grootboom. 24 In terms of the provisions of section 195(1)(g) of the Constitution, read with the Promotion of Administrative Justice Act (No. 3 of 2000) and Regulation 5, ‘Special Assistance’, of its Regulations, 2002. 25 IUSS Online, About: Application. Accessed 20 October 2020, https://www.iussonline.co.za/about 26 See https://pmg.org.za/bill/886/ 27 Nyathela N & Draga L, Provincial norms and standards implementation plans deficient – EE, Politicsweb, 24 September 2015. Accessed March 2019, https://www.politicsweb.co.za/ documents/provincial-norms-and-standards-implementation-plan 28 Equal Education, Statement: Provincial school infrastructure reports reveal education departments can’t properly plan, meanwhile the 2018 reports are still owed, 27 March 2019. Accessed 12 November 2020, https://equaleducation.org.za/2019/03/27/statement-provincialschool-infrastructure-reports-reveal-education-departments-cant-properly-plan-meanwhilethe-2018-reports-are-still-owed/ 29 Equal Education and Another v Minister of Basic Education and Others (276/2016) [2018] ZAECBHC 6 (19 July 2018).

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30 The CSG is currently R450 per month (National Treasury 2019: 57). It is unclear on what basis the amount of the CSG has been set at its current level in relation to other social grants, particularly in view of the extensive body of knowledge concerning the critical importance of early childhood development (ECD) for a child’s subsequent ability to learn, develop and ‘free [their] potential’ (Preamble to the Constitution). 31 We surmise that the slight decline is at least partly attributable to an inability to keep up with the rate of urbanisation. 32 According to the WHO, ‘“improved sanitation” refers to sanitation facilities that hygienically separate human excreta from basic human contact. These sanitation facilities include flush toilets connected to a public sewerage system, flush toilets connected to septic tank or conservancy tank, pit latrine toilets with ventilation, and pour-to-flush toilets connected to a septic tank. Households with such toilet facilities are regarded as having “improved sanitation”’ (cited in Stats SA 2019b: 110). 33 This figure is contradicted by the Department of Water and Sanitation (DWS), which estimated in 2018 that ‘around 80%’ of inhabitants had access to ‘sanitation services’ – a stark difference (DWS 2018: 19). Data inconsistencies of this kind make planning, implementation and monitoring extremely difficult. 34 Nyathela N & Draga L, Provincial norms and standards implementation plans deficient – EE, Politicsweb, 24 September 2015. Accessed March 2019, https://www.politicsweb.co.za/ documents/provincial-norms-and-standards-implementation-plan 35 For a discussion of a reconceptualised constitutional dialogue, see Bohler-Muller et al. (2019). 36 See also Chapter 13 – The public participation process, South African History Online, updated 1 September 2019. Accessed 12 November 2020, https://www.sahistory.org.za/ archive/chapter-13-public-participation-process 37 CCT 53/03 [2004]. 38 (24/07) [2008]. 39 A life without struggle in SA is achievable, The Citizen, 20 August 2019. 40 Madonsela to lead courageous discussions on ‘breaking the back of poverty and inequality’, Stellenbosch University Corporate Communications, 19 October 2018. Accessed November 2019, https://www.sun.ac.za/english/Lists/news/DispForm.aspx?ID=6027. See also Madonsela Law Trust Chair in Social Justice (2018), Musa Plan for Social Justice: Summary Report of Expert Round Table. On p 6 of the report ‘Professor Madonsela further explained that “The Musa Plan honours the life of Palesa Musa, a real person. She was arrested at the age of 12 on 16 June 1976, and subsequently harassed, which disrupted her education … Today, although she works very hard selling cosmetics, she’s poor … Some days she goes without any food”. When she met Palesa, Palesa’s child was also at risk of not obtaining a tertiary education and was likely to end up poor.’ Accessed January 2021, https://socialjustice. sun.ac.za/downloads/m-plan/2018-final-expert-roundtable-report.pdf

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References Ackermann L (2004) ‘The legal nature of the South African Constitutional revolution’ cited in PC Davis (2009) ‘Responsive constitutionalism and the idea of dignity,’ Journal of Constitutional Law 11(5): 1373–1380 Bilchitz D (2002) Giving socio-economic rights teeth: The minimum core and its importance. South African Law Journal 118: 484–488 Bilchitz D (2003) Towards a reasonable approach to the minimum core: Laying the foundations for future socioeconomic rights jurisprudence. South African Journal on Human Rights 19(1): 1–26. https://doi.org/10.1080/19962126.2003.11865170 Bohler-Muller N, Pienaar G, Davids YD & Gordon SL (2019) Realising socioeconomic rights: A reconceptualised constitutional dialogue. In C Soudien, V Reddy & I Woolard (Eds) Poverty & inequality: Diagnosis prognosis responses. State of the Nation series. Pretoria: HSRC Press CESCR (UN Committee on Economic, Social and Cultural Rights) (1999) CESCR General comment 11: Plans of action for primary education. Accessed November 2019, https://www. right-to-education.org/resource/cescr-general-comment-11-plans-action-primary-education CESCR (2017) Consideration of reports submitted by states parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights. Initial reports of states parties due in 2017: South Africa. Accessed November 2019, https://www.refworld.org/ docid/594ce8094.html CESCR (2018) Concluding observations on the initial report of South Africa. 29 November. Accessed December 2019, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/ Download.aspx?symbolno=E%2fC.12%2fZAF%2fCO%2f1&Lang=en Dawson H & McLaren D (2015) A framework for monitoring and evaluating the progressive realisation of socio-economic rights in South Africa. Johannesburg: SPII DBE (Department of Basic Education)Regulation Gazette Vol. 581 No. 38081, 29 November 2013. Accessed November 2019, https://www.education.gov.za/Portals/0/Documents/ Policies/Norms%20and%20Standards%20on%20School%20Infrastructure. pdf?ver=2015-02-04-090131-173 DSD (Department of Social Development) (n.d.[a]) Portfolio committee on social development: Strategic plan 2015–2020 & Annual performance plans 2016/17. Accessed June 2019, pmgassets.s3-website-eu-west-1.amazonaws.com/160406dsd.ppt DSD (n.d.[b]) Strategic plan 2010–2015. Pretoria: DSD. Accessed June 2019, https://www.gov.za/ sites/default/files/gcis_document/201409/dsd-strategic-plan-2010-20150.pdf DSD (2013) Generic norms and standards for social welfare services: Towards improved social services. Pretoria: DSD. Accessed March 2019, https://docplayer.net/28778907-Genericnorms-and-standards-for-social-welfare-services.html Dugard J (2008) Courts and the poor in South Africa: A critique of systemic judicial failures to advance transformative justice. South African Journal on Human Rights 24(2): 214–238. https://doi.org/10.1080/19962126.2008.11864953 DWS (Department of Water and Sanitation) (2017) National norms and standards for domestic water and sanitation services. Notice no. 982. Government Gazette Vol. 627, No. 41100, 8 September. Accessed March 2019, https://www.gov.za/documents/national-water-actnational-norms-and-standards-domestic-water-and-satination-services-8 128

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DWS (2018) National water and sanitation master plan. Pretoria: DWS. Accessed March 2019, https://www.gov.za/sites/default/files/gcis_document/201911/national-water-and-sanitationmaster-plandf.pdf HSRC (Human Sciences Research Council) (2015) Constitutional Justice Project: Assessment of the impact of decisions of the Constitutional Court and Supreme Court of Appeal on the transformation of society. Final report. Prepared for the Department of Justice and Constitutional Development (DoJ&CD), in partnership with the Nelson Mandela School of Law, University of Fort Hare. Pretoria: HSRC Press. Accessed 12 November 2020, http://repository.hsrc.ac.za/handle/20.500.11910/1768? Klare KE (1998) Legal culture and transformative constitutionalism. South African Journal on Human Rights 14(1): 146–188. https://doi.org/10.1080/02587203.1998.11834974 Kraak A (2004) An overview of South African human resources development. Cape Town: HSRC Press Law Trust Chair in Social Justice, Stellenbosch University (2018). Musa Plan for Social Justice: Summary Report of Expert Round Table. Stellenbosch: University of Stellenbosch Liebenberg S (2014) Judicially enforceable socioeconomic rights in South Africa: Between light and shadow. Dublin University Law Journal 37: 131–171 Madonsela T (2018) Helen Suzman memorial lecture, 21 November 2018. Accessed June 2019, https://hsf.org.za/publications/lectures/prof-t-madonsela-hsf-memorial-lecture-speech.pdf McLean K (2009) Constitutional deference, courts and socioeconomic rights in South Africa. Pretoria: Pretoria University Law Press Morudu HD (2017) Service delivery protests in South African municipalities: An exploration using principal component regression and 2013 data. Cogent Social Sciences 3(1): Art. 1329106. https://doi.org/10.1080/23311886.2017.1329106 Motsoeneng M (2016) Monitoring and evaluating the progressive realisation of the right to water and sanitation in South Africa: People’s Guide. Johannesburg: SPII Mureinik E (1994) A bridge to where? Introducing the interim Bill of Rights. South African Journal on Human Rights 10(1): 31–48. https://doi.org/10.1080/02587203.1994.11827527 National Treasury (2019) Budget review 2019. 20 February. Pretoria: National Treasury. Accessed November 2019, http://www.treasury.gov.za/documents/national%20budget/2019/review/ FullBR.pdf NPC (National Planning Commission) (2012) National Development Plan 2030: Our future – make it work. Pretoria: The Presidency. Accessed 12 November 2020, https://www.gov.za/ documents/national-development-plan-2030-our-future-make-it-work Nussbaum MC (2000) Women and human development: The capabilities approach. Cambridge, UK: Cambridge University Press Nussbaum MC (2011) Creating capabilities: The human development approach. Cambridge, MA: Harvard University Press Nussbaum MC & Sen A (Eds) (1993) The quality of life. Oxford: Oxford University Press OAU (Organisation of African Unity) (1981) African (Banjul) charter on human and peoples’ rights. Accessed 24 October 2020, https://www.achpr.org/legalinstruments/detail?id=49

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OHCHR (Office of the UN High Commissioner for Human Rights) (1966) International covenant on economic, social and cultural rights. Geneva: OHCHR. Accessed June 2020, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx OHCHR (1989) General comment No. 1: Reporting by states parties. Accessed June 2019, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT %2fCESCR%2fGEC%2f4756&Lang=en OHCHR (1990) CESCR General comment No. 3: The nature of states parties’ obligations (Art. 2, Para. 1, of the Covenant). Accessed November 2019, https://www.refworld.org/ pdfid/4538838e10.pdf OHCHR (1991) CESCR General comment No. 4: The right to adequate housing (Art. 11 (1) of the Covenant). Accessed November 2019, https://www.refworld.org/pdfid/47a7079a1.pdf OHCHR (1995) CESCR General comment No. 6: The economic, social and cultural rights of older persons. Accessed November 2019, https://www.refworld.org/docid/4538838f11.html OHCHR (1997) CESCR General comment No. 7: The right to adequate housing (Art. 11.1) of the Covenant: Forced evictions. Accessed October 2020, https://www.refworld.org/ docid/47a70799d.html OHCHR (1999a) CESCR General comment No. 12: The right to food (Art. 11). Accessed October 2020, https://www.refworld.org/docid/4538838c11.html OHCHR (1999b) CESCR General comment No. 13: The right to education (Art. 13). Accessed November 2019, https://www.refworld.org/pdfid/4538838c22.pdf OHCHR (2000) CESCR General comment No. 14: The right to the highest attainable standard of health (Art. 12). Accessed November 2019, https://www.refworld.org/pdfid/4538838d0.pdf OHCHR (2003) CESCR General comment No. 15: The right to water (Arts 11 and 12 of the Covenant). Accessed November 2019, https://www.refworld.org/pdfid/4538838d11.pdf OHCHR (2008) General comment No. 19: The right to social security (Art. 9). Accessed November 2019, https://www.refworld.org/docid/47b17b5b39c.html OHCHR (2010) The right to adequate food. Fact sheet no. 34. Accessed November 2019, https://www.ohchr.org/Documents/Publications/FactSheet34en.pdf O’Regan K (2012) Helen Suzman memorial lecture: A forum for reason: Reflections on the role and work of the Constitutional Court. South African Journal on Human Rights 28(1): 116– 134. https://doi.org/10.1080/19962126.2012.11865038 Pienaar G, Bohler-Muller N & Cosser M (2018) Creating a transformative governance index: Measuring progress in the attainment of social justice. HSRC Review 16(1): 8–9. Accessed March 2019, http://www.hsrc.ac.za/en/review/hsrc-review-jan-march-2018 Pienaar G, Bohler-Muller N, Cosser M & Hagg G (2017) Eliminating poverty and inequality by realising socio-economic rights: The role of the courts. HSRC Review 15(4). Accessed June 2019, http://www.hsrc.ac.za/en/review/hsrc-review-oct-dec-2018/eliminating-poverty-andinequality The Presidency (2013) A framework for strengthening citizen–government partnerships for monitoring frontline service delivery. Pretoria: The Presidency (Department of Performance Monitoring and Evaluation). Accessed November 2019, https://www.dpme.gov.za/keyfocusareas/cbmSite/ CBM%20Documents/Framework%20for%20Strengthening%20Citizen-Government%20 Partnerships%20for%20Monitoring%20Frontline%20Service%20Delivery.pdf 130

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The Presidency (2019) The Presidential health summit 2018 compact: Strengthening the South African health system towards an integrated and unified health system. Pretoria: The Presidency. Accessed November 2019, http://www.thepresidency.gov.za/documents Ramaphosa C (2019a) Address by President Cyril Ramaphosa at the 25 Years of Democracy Conference, University of Johannesburg, Auckland Park, 23 July 2019. Accessed 13 October 2020, http://www.thepresidency.gov.za/speeches/address-president-cyril-ramaphosa-25years-democracy-conference%2C-university-johannesburg%2C Ramaphosa C (2019b) 2019 State of the nation address, 7 February 2019. Accessed November 2019, https://www.gov.za/speeches/president-cyril-ramaphosa-2019-state-nation-address-7feb-2019-0000 Sen A (1999) Development as freedom. Oxford: Oxford University Press Sen A (2009) The idea of justice. London: Allen Lane South Africa (2014) Refined MTSF Chapter 2016/17. Appendix 13. Outcome 13: An inclusive and responsive social protection system. Accessed March 2019, https://www.poa.gov.za/ MTSF%20Documents/Outcome%2013%20refined%20Social%20Protection%20MTSF%20 Chapter.pdf Stats SA (Statistics South Africa) (2018a) General household survey 2018. Statistical Release P0318, 28 May. Pretoria: Stats SA. Accessed June 2019, http://www.statssa.gov.za/ publications/P0318/P03182018.pdf Stats SA (2018b) Subjective poverty in South Africa: Findings from the living conditions surveys, 2008/2009–2014/2015. Report 03-10-01. Pretoria: Stats SA. Accessed June 2019, http://www.statssa.gov.za/publications/Report%2003-10-01/Report%2003-10-012015.pdf Stats SA (2019a) Governance, public safety and justice survey, GPSJS 2018/19. Statistical Release P0340. Pretoria: Stats SA. Accessed June 2019, http://www.statssa.gov.za/publications/P0340/ P03402019.pdf Stats SA (2019b) Inequality trends in South Africa: A multidimensional diagnostic of inequality 2017. Report 03-10-19. Pretoria: Stats SA. Accessed June 2019, http://www.statssa.gov. za/?page_id=1854&PPN=Report-03-10-19&SCH=7680 United Nations (1966) International covenant on economic, social and cultural rights. Accessed November 2020, https://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf Van der Berg S (2019) A capabilities approach to remedies for systemic resource-related socioeconomic rights violations in South Africa. African Human Rights Law Journal 19(1): 290–316. https://doi.org/10.17159/1996-2096/2019/v19n1a14

Dataset HSRC (Human Sciences Research Council) (2017) South African Social Attitudes Survey (SASAS) 2017. http://www.hsrc.ac.za/en/departments/sasas/data

Cases Black Sash Trust v Minister of Social Development and Others (Freedom Under Law Intervening) (CCT 48/17) [2018] ZACC 36; 2018 (12) BCLR 1472 (CC) (27 September 2018) Certification of the South African Constitution 1996 (4) SA 744 (CC) 131

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City of Johannesburg v L Mazibuko and Others (489/08) [2009] ZASCA 20 (25 March 2009) City of Johannesburg v Rand Properties (Pty) Ltd and Others (253/06) [2007] ZASCA 25; [2007] SCA 25 (RSA); [2007] 2 All SA 459 (SCA); 2007 (6) SA 417 (SCA) (26 March 2007) Equal Education and Another v Minister of Basic Education and Others (276/2016) [2018] ZAECBHC 6 (19 July 2018) Government of the RSA and Others v Grootboom and Others (CCT 11/00) [2000] ZACC 19 (4 October 2000) Mazibuko and Others v City of Johannesburg and Others (CCT 39/09) [2009] ZACC 28 (8 October 2009) Minister of Health and Others v Treatment Action Campaign and Others (No 2) (CCT 8/02) [2002] ZACC 15 (5 July 2002) Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others (CCT 31/09) [2009] ZACC 33 (19 November 2009) Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others (24/07) [2008] Port Elizabeth Municipality v Various Occupiers CCT 53/03 [2004]

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6

Diminishing the power of the X? The electoral effect of corruption perceptions Benjamin J Roberts, Ngqapheli Mchunu, Steven L Gordon and Jarè Struwig

We are committed to building an ethical State in which there is no place for corruption, patronage, rent-seeking and plundering of public money … The decisive steps we have taken to end state capture and fight corruption … are achieving important results. But there is still much more work to do. – President Cyril Ramaphosa, State of the Nation Address, 20 June 2019 The coronavirus pandemic has exposed the extent to which corruption has infected our society and robbed our country of vital resources at the time we need them most. – President Cyril Ramaphosa, Progress in South Africa’s effort to contain the coronavirus Covid-19 pandemic, 16 September 2020

Since the first confirmed case was recorded in March 2020, the Covid-19 pandemic has exposed deeply entrenched corruption in the South African public sector. Corruption impeded several government programmes which were implemented to assist the least fortunate to cope during the national lockdown instituted in response to the pandemic. Food parcels, water and sanitation infrastructure in the form of water tanks, and other necessities which were deemed essential in fighting Covid-19 were distributed nationwide. However, in the distribution of these goods, unscrupulous acts of corruption (especially at the local government level) were flagged by the media and civil society groups. Allegations surfaced suggesting that councillors in various municipalities across the country were taking food parcels for themselves and not distributing the parcels to those who needed them the most. The degree to which funds designated for Covid-19 relief programmes were misappropriated was revealed by a report by the Special Investigating Unit (SIU).1 At the time of writing, very little concrete action had been taken against these alleged perpetrators and there was widespread concern about a general lack of accountability in the current political environment. Claims of Covid-19 tender irregularities involving the awarding of lucrative contracts to family members of high-ranking ANC officials have also fuelled concern over political patronage in the country. Corruption should be regarded as one of the main obstacles to socioeconomic transformation and progress in South Africa. In the years leading up to the commemoration of 25 years of democracy, the public became progressively more concerned about this challenge. Could this mounting concern be fuelling scepticism that is antithetical to electoral participation? Political analysts have pointed out that rising awareness of corrupt practices within the public sector could serve to dissuade members of the voting-age public from actively participating in the democratic

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process.2 Are such fears justified by the evidence? This chapter seeks to engage with this question by considering how public attitudes towards corruption may be influencing electoral behaviour and attitudes towards voting in the country. To provide the most contemporary analysis of the question, public opinion data were used to examine the period between 2003 and 2018. Public perceptions of corruption in the country have been evolving over time, spurred on by high-profile political corruption scandals that arose during the past 15 years and that continue to receive appreciable media attention. The results of our analysis demonstrate the existence of a groundswell in concern about the extent and nature of corruption among the South African public since the early 2000s. Although there was a discernible improvement in the level of worry over corruption following the transition from the Zuma to the Ramaphosa administration in early 2018, corruption nonetheless continues to rank as one of the most pressing challenges believed to be affecting the country. In addition, many remain quite sceptical about government’s anti-corruption efforts. This raises the question of the possible effects of corruption attitudes on electoral attitudes and behaviour. Our analysis has shown that corruption as a societal challenge does not exert an appreciable influence on voting attitudes and behaviour. It produces a marginal decline in the belief that it is one’s civic duty to vote and an equally modest increase in planned electoral abstention at the expense of party loyalty. Dissatisfaction with government anti-corruption efforts has a greater influence, although the scale of this impact should not be overstated. It has been found to have a modest eroding effect on the belief in the power of one’s vote (internal political efficacy), a clearer negative effect on views towards the current electoral system and a moderate pull-down effect on intention to vote.

Electoral participation The 2019 national and provincial elections (NPEs) were the sixth since the first democratic elections in 1994. As early as March 2018, President Cyril Ramaphosa was urging citizens to register to vote because, as he said, the 2019 NPEs were going to be vital for the nation’s future. The president was speaking during a walkabout in Soweto, where he encouraged residents to participate in democracy. Ramaphosa described his morning walk in the township as a special effort intended to mobilise the people to register to vote. ‘We are going door-to-door, asking our people to vote because the next elections are going to be very important,’ he told Soweto residents.3 At the time, the president’s party, the ANC, was embattled by allegations of government corruption and fraud – often labelled ‘state capture’ – and was campaigning on cleaning up public sector corruption. However, Ramaphosa told voters that ‘[r]ight now, it doesn’t matter which party you belong to as long as you register to vote’. The key target for registration was the youth, many of whom were becoming eligible to vote for the first time.

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One of the reasons why the president was so concerned about electoral participation is that for almost a hundred years, the vast majority of the country’s inhabitants were denied the electoral franchise. This is one of the most fundamental political rights that an individual can possess in a multiparty democracy. Despite material and administrative challenges, the country’s first democratic elections were characterised by high voter turnout. However, since the late 2000s, scholars have raised concerns about declining public participation in the country’s elections.4 The clearest sign of this trend was observed in the lead-up to the sixth NPEs, in 2019. Voter registration amongst the all-important 18–19-year age group was dramatically down from what had been observed for the fifth NPEs. A 47% decline in registered 18- and 19-year-olds was noted between the two election periods. Turnout of registered voters was at 66% during the 2019 NPEs – a drop of seven percentage points from what was observed for the 2014 NPEs (Roberts et al. 2019). This was the lowest level of NPE turnout since the Election Commission of South Africa (IEC) started providing accurate turnout data. Levels of participation are even lower if we consider turnout in terms of the voting-age population (VAP), as shown in Table 6.1. The downturn in voter turnout has been accompanied by a substantial decline in public trust in political institutions and a growing disillusionment with democracy among the general populace. In a comprehensive analysis of public opinion in South Africa for the contemporary period, Jarè Struwig et al. found that a considerable segment of the public had lost faith in the political class (2016). Satisfaction with democracy and political institutions was low and public trust in key political institutions (such as national government) had diminished significantly. Political distrust was found to be widespread amongst the country’s various socioeconomic classes.5 Such discontent is rather disconcerting and raises a number of fundamental questions, foremost of which is: What are the principal factors influencing such broad-based dissatisfaction with leaders and services rendered? One possible contributing factor underlying the decline in voter turnout over the period 1999 to 2019 could be mounting political disillusionment with a corrupt Table 6.1 Electoral participation in national and provincial elections in South Africa, 1999–2019

Year

Voting-age population (VAP)

Registered population (RP)

Total spoilt votes

Total valid votes

Count

Count

VAP

Count

VAP

RP

Count

VAP

RP

1999

22 589

18 173

80

251

1

1

16 228

72

89

2004

27 437

20 675

75

251

1

1

15 864

58

77

2009

29 957

23 182

77

239

1

1

17 920

60

77

2014

32 688

25 388

78

252

1

1

18 655

57

73

2019

35 868

26 757

75

252

1

1

17 672

49

66

Source: IEC; Schulz-Herzenberg (2019) Notes: • Count = '000 • VAP and RP = %

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public sector and executive. Since the mid-2010s, the subject of ‘state capture’ has come to dominate South African politics. State capture refers to the architecture of corrupt patronage networks created since the late 2000s by a pro-Zuma elite.6 From investigations into the issue, it is becoming increasingly clear that state capture has cost South Africa hundreds of billions of rands in lost economic growth, weakened state institutions, made it difficult for the government to secure loans and negatively affected service delivery. Could growing levels of public sector corruption have produced general public scepticism about democracy as well as the larger democratic process? In order to understand why corruption has become such a pressing national concern in South Africa, it is necessary to take an historical perspective.

Corruption in the public sector Since the formation of the modern South African state in the early 1900s, the country has struggled with the problem of public and executive corruption. This can be accurately observed if we look at data from the latest Varieties of Democracy (V-Dem) series.7 During the pre-democratic period, authoritarian government systems in South Africa supported and encouraged corruption at both the macro and the micro levels. The concentration of economic decisionmaking eventually culminated in an expanded bureaucracy that was entrusted with extensive discretionary authority. This was particularly true in the homelands, where public enterprises became sources of revenue for both political and bureaucratic elites (Hyslop 2005). In this type of politics, politicians function as the patrons of business within a system which could be described as ‘neopatrimonialism’.8 The pre-democratic state’s capacity for favouritism was further entrenched by the development of large state-owned enterprises (SOEs, also known as parastatals). Consequently, a system of corrupt politics developed during this period in which commercial enterprise and the state were closely intertwined. Democratic South Africa saw the reordering of pre-democratic neopatrimonial politics by the country’s new ruling party. Upon coming to power in 1994, the new democratic government abolished the homeland system and absorbed their bureaucracies into the state apparatus. With the aim of devolving more power to the local level, a new municipal government system was designed to replace the old centralised system. In an effort to solidify its support base in these new localities, and to head off potential rivals, the ruling party embraced corrupted homeland politicians and their practices (Lodge 1998). Within the new municipalities, prominent local party officials and their families began to acquire lucrative business interests and allies in the commercial sector. This resulted in the gradual ‘capture’ of many of the new municipalities by new patronage networks.9 Indeed, as the V-Dem data show – see Figure 6.1 – there was a steady growth in public and executive corruption beginning in 1990. At the macro level, the post-apartheid state used its economic power to establish and cultivate allies in the private sector. As they controlled the parastatals as well

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as powers of licensing and regulation, state actors had considerable power to reward their friends in business. The growth of neopatrimonial politics within the ruling party seems to have accelerated under the Zuma administration. A series of investigations led by the Office of the Public Protector served to highlight corruption by the Presidency.10 In late 2016, the South African polity was particularly shaken by a report by the Public Protector on alleged favouritism shown towards certain private sector allies by former president Jacob Zuma and other state functionaries (Office of the Public Protector 2016). The most prominent of these allies were the Guptas, a family with considerable business interests. The report spurred further speculation about the level of corruption in South African society.11 The V-Dem data, shown in Figure 6.1, show a moderate decline in corruption beginning in the last few years, as a result of more aggressive interrogation of such corrupt practices. However, public and executive corruption is still far above what it was in the 1960s. In an effort to root out corruption, the Ramaphosa administration has set up major commissions of inquiry into state capture. The most extensive of these is the Judicial Commission of Inquiry into Allegations of State Capture (also known as the Zondo Commission) led by Deputy Chief Justice Raymond Zondo, whose terms of reference include investigating allegations of fraud and corruption in the public sector, with a core focus being state entities. The Zondo Commission has highlighted the economic damage of the capture of government at the local and national level.12 Worryingly, the commission has exposed details relating to misconduct and malpractice in law enforcement agencies, such as the National Prosecuting Authority (NPA), as well as the undermining of the national tax collection agency, the South African Revenue Service (SARS). Testimonies from public officials and private Figure 6.1 Mean scores for the Public Corruption Index and the Executive Corruption Index in South Africa, 1910–2018 Index score 0.60 0.55 0.50 0.45 0.40 0.35 0.30

Executive Corruption Index Public Corruption Index

0.25

19 10 19 14 19 18 19 22 19 26 19 30 19 34 19 38 19 42 19 46 19 50 19 54 19 58 19 62 19 66 19 70 19 74 19 78 19 82 19 86 19 90 19 94 19 98 20 02 20 06 20 10 20 14 20 18

0.20

Source: Coppedge et al. (2020)

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business representatives have also shown how corrupt competition for tenders from and posts within the state have become. Such conflict has become so fierce that the murder of politicians is on the rise,13 and the competition seems to be financed by new cohorts of politicians-cum-businesspeople elite.14 The findings of the Zondo Commission have been corroborated by recent audit results from the Auditor General of South Africa (AGSA), which have found appalling levels of corruption in the country’s municipal governments.15 Media coverage of corruption, particularly public corruption, seems to have grown since the election of Zuma in 2009. Although several high-profile corruption scandals occurred during earlier presidencies, the scandals that surrounded the Zuma presidency appear to have overshadowed these. As the media stepped up its reporting on corruption, media freedom was challenged by the state via the proposed Media Appeals Tribunal.16 Reporting on corruption has also come from the political opposition. The ruling party’s political opponents have used, in particular, former President Zuma as a symbol of graft and venality within the South African government. For example, the Economic Freedom Fighters (EFF) have repeatedly disrupted Parliament to protest against corruption, making strategic use of the chant ‘pay back the money’. However, certain EFF leaders have themselves become embroiled in corruption scandals – involving the VBS Mutual Bank – in recent years.

Data used to examine corruption perceptions and electoral predispositions This chapter makes use of data from the South African Social Attitudes Survey (SASAS), covering the period from 2003 to 2018. This nationally representative survey series has been conducted annually by the HSRC since 2003 and consists of probability samples of South African adults aged 16 years and older living in private households. The inclusion of geographic type and majority population group as stratification variables ensures that the sample reflects the demographic and population patterns/distribution in each of the country’s nine provinces. The sample sizes for each of the 15 survey rounds included in the analysis range from 2 497 to 3 305. In order to ensure that the sample is representative of the adult population, the data have been weighted to the latest available mid-year population estimate produced by Statistics South Africa (Stats SA). The survey questionnaires were translated into the major official languages of the country as a means of promoting cross-cultural equivalence. The research instruments also include a number of sociodemographic questions that allowed us to investigate attitudinal change within the major demographic and socioeconomic subgroups of the country. Ethical approval for each survey round was secured from the HSRC Research Ethics Committee.

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The rise of corruption as a major public concern Each round of the SASAS series conducted to date has included a ‘most important challenge’ question, which aims to gauge which issues or challenges the public deem to be of high importance at any given time and the degree to which this ‘public agenda’ is evolving over time. Questions of this sort allow the most pressing issues in the minds of the public to be identified without bias from the researcher. Key responses for the periods 2003 and 2018 are presented in Figure 6.2. For both periods, unemployment was the most salient problem identified by the South African public, by a considerable margin. The portion of respondents who viewed HIV and/ or AIDS as one of the ‘most important challenges’ declined significantly over the period. This remarkable change indicates public recognition of the post-apartheid government’s successful interventions in addressing the disease, most prominently the antiretroviral (ARV) treatment programme. An equally dramatic shift in public attitudes has occurred concerning corruption. The portion of the adult population that viewed corruption as one of the ‘most important challenges’ grew substantially between 2003 and 2018. The trend shown in Figure 6.2 underrepresents the degree of change that has occurred over the period. Corruption rose from the eighth most frequently mentioned challenge in 2003 to the third in 2016 and the fourth in 2017. Figure 6.2 Public views regarding the three most important challenges facing South Africa in 2003 and 2018 78 79

Unemployment 47

Crime and safety Poverty

25 12

Service delivery Corruption Education

2003 2018

23

9

19

HIV and/or AIDS Affordable housing

25

9

53

38

18

49

13 13 0 10 20 30 40 50 60 70 80 90 Percentage of respondents who mentioned the issue as a challenge

Source: SASAS 2003, 2018 (HSRC 2019) Note: Discrepancies in the graph are due to rounding.

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Figure 6.3 Percentage of South Africans identifying corruption as one of the top three challenges facing the country, 2003–18 2003

9

2004

11

2005

12

2006

13

2007

15

2008

14

2009

18

2010

19 26

2011

28

2012 25

2013 24

2014

30

2015

31

2016 30

2017 2018

23 0 5 10 15 20 25 30 35 Percentage of the general adult population

Source: SASAS 2003–18 (HSRC 2019)

As shown in Figure 6.3, it was only after Zuma stepped down as national president and the Ramaphosa administration began pursuing an anti-corruption agenda that the portion of respondents identifying corruption as the most important problem declined. In effect, the South African attitudinal patterns here are consistent with the thermostatic public response thesis.17 If the policy ‘temperature’ on an issue, for example a corrupt executive, differs from the preferred temperature, an anticorruption campaign in this case, the public becomes alarmed. This ‘alarm’ acts as a signal to policy-makers to adjust the ‘temperature’. If the adjustment occurs, the strength of the signal (the alarm) declines. Alongside the relative growth in concern over the challenge posed by corrupt practices in South African society since the mid-2000s, there exists broad recognition among the adult public that the government has not been performing particularly well in its response to corruption. As Figure 6.4 demonstrates, around three-quarters (76%) voiced discontent with government’s handling of corruption in the survey round that was conducted between late 2018 and early 2019. Conversely, a mere 12% expressed satisfaction with efforts in this regard, while 9% offered neutral responses and 3% were uncertain. Public evaluations on this issue have remained fairly consistent over the 2012–18 period. A possible reason for the growth in public concern about the issue of corruption could be growing awareness of the problem. As the media devotes greater and

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Figure 6.4 Public evaluation of government performance in handling corruption in one’s local place of residence, 2012–18 2012 2013

10

10

12

78

7

Satisfied

78

2014

10

13

74

2015

12

10

77

2016 2017 2018

16 10 12

12 10 9

Neutral Dissatisfied Do not know

70 79 76

0 10 20 30 40 50 60 70 80 90 100 Percentage of respondents Source: SASAS 2012–18 (HSRC 2019)

greater coverage to an issue, the public is primed to think that issue is one of national importance. This thesis would fit with traditional media agenda-setting theory.18 Of course, the media cannot change attitudes; they can merely highlight and encourage the discussion of certain issues. The period under review witnessed significant changes in the media industry. The ‘tabloid revolution’ in South Africa has seen the growth of affordable and accessible newspapers, such as the Daily Sun, that regularly report on sensational incidents of corruption (Wasserman 2008). It could be that as certain groups, such as black South Africans, gain greater access to this type of information, they are becoming more aware of corruption as a problem. The pattern of responses described above signifies that the public displayed a high level of worry over corruption in the months leading up to the 2019 NPEs (a level similar to that found in 2014, but higher than for preceding elections), combined with an unassuaged disappointment with state-level efforts to address corruption. This outcome likely reflects (at least in part) mounting awareness of and reactions to processes of state capture in the country and the seeming absence of a culture of accountability in the public service. The question that now remains is whether this exerts an influence on electoral predispositions among the VAP.

The influence of corruption perceptions on voting attitudes The first potential influence of corruption perceptions that we examine is on a core set of voting attitudes, namely the belief in the duty to vote, views regarding personal and external political efficacy, and the public’s assessment of the performance of the electoral system and the perceived need for reform to promote gains in accountability.

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Duty to vote South Africans typically display a deeply rooted sense of the duty to vote, which is likely to reflect the hard-won struggle for the universal franchise. The SASAS data reveal that in 2018, despite a fall from a high point of 87% in 2004, close to seven in ten South Africans (68%) still expressed this belief. From the results in Table 6.2, it appears that corruption perceptions did not fundamentally alter this predisposition in 2018–2019. Those viewing corruption as a key challenge facing the country were slightly less inclined (by five percentage points) to adopt a pro-duty stance than those not mentioning corruption as a societal challenge. Nonetheless, the dominant response is still convincingly in favour of the civic duty to vote. The attitudinal gap between those satisfied and dissatisfied with government’s anti-corruption efforts is even narrower (three percentage points), with those critical of state action actually displaying a marginally higher belief in the duty to vote.

Political efficacy As with duty, we do not find strong evidence suggesting that corruption perceptions are associated with a sizeable cleavage in feelings of political efficacy among the South African public. First, we consider internal personal efficacy, which was measured using a single statement about the self-perceived ability to have an influence on the political system (‘Whether I vote or not makes no difference’). As shown in Table 6.2, levels of agreement with this statement remain constant (48%) irrespective of whether corruption is regarded as a pressing national challenge. There is only nominal variation in the neutral and disagreement categories. This points to an overall despondency about the power of one’s vote among South Africans, regardless of their views on corruption and in spite of feeling that it is every citizen’s civic responsibility to vote in elections. A similar tendency in internal efficacy responses is apparent based on views towards the government’s anti-corruption efforts. Those who voice satisfaction with state action are a touch more sceptical about the political influence of their vote than the discontented (54% versus 48%). Second, the bearing that corruption perceptions have on external political efficacy is gauged by a statement about the perceived responsiveness of the elected to the public (‘After being elected all parties are the same, so voting is pointless’). The results, shown in Table 6.2, reveal a broadly similar pattern, with the scale of difference ranging within a few percentage points based on specific views towards corruption. A sceptical view of the accountability of actors in the political system is displayed, regardless of the corruption perceptions held by adult South Africans.19

Performance of the electoral system and support for electoral reform Based on the findings from the 2017 SASAS round, South Africans appear generally of the view that the current electoral system is not performing optimally and requires some change, with no appreciable differences according to whether or not corruption was recognised as a societal problem, as shown in Figure 6.5. Slightly over half (54%) 142

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of those who recognised corruption as one of the most important problems felt that the current system provides the best possible government, compared to 49% of those who did not list corruption as a pressing societal challenge. No difference is evident between these two groups of adults in terms of accountability and the electoral system, with only slightly over two-fifths (43% versus 44%) saying that the voting system allows members of Parliament (MPs) to be held accountable for their actions. A similar level of demand for electoral reform was also evident among the two groups, with nearly three-fifths (59%) of both groups favouring a greater voter influence on the final candidate lists for political parties contesting elections, regardless of views on corruption as a national priority. Greater variation in evaluations of and demand for change to the electoral system can be observed based on the views of South Africans towards government anticorruption efforts. Those satisfied with government anti-corruption efforts voiced greater confidence in the electoral system on average than those providing critical assessments of government anti-corruption performance. Figure 6.5 reveals that three-fifths (60−61%) of those expressing contentment with anti-corruption efforts believe that the electoral system provides the best possible government and allows votes to hold elected parliamentarians to account. By contrast, between two-fifths Table 6.2 Corruption perceptions and psychological engagement in voting, South Africa, 2018–19 Corruption perceived as a most important problem (%) No

Yes

Difference

Satisfaction with government anticorruption efforts (%) Satisfied

Dissatisfied

Difference

Civic duty to vote: ‘It is the duty of all citizens to vote.’ Agree (pro-duty)

69

64

−5

67

70

+3

Neutral

14

15

+1

14

13

−1

Disagree (anti-duty)

15

20

+5

15

15

0

Item non-response

2

2

0

4

2

−2

100

100

0

100

100

0

Total

Internal political efficacy: ‘Whether I vote or not makes no difference.’ Agree

48

48

0

54

48

−6

Neutral

15

18

+3

13

14

+1

Disagree

34

31

−3

30

35

+5

3

3

0

3

3

0

100

100

0

100

100

0

Item non-response Total

External political efficacy: ‘After being elected all parties are the same, so voting is pointless.’ Agree

48

45

Neutral

17

Disagree

31

Item non-response Total

−3

52

48

−4

17

0

12

16

+4

34

+3

30

32

+2

3

4

+1

6

3

−3

100

100

100

100

100

0

Source: SASAS 2018, 2019 (HSRC 2019)

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Figure 6.5 Corruption perceptions and views on the electoral system, South Africa, 2017 Corruption not perceived as a most important problem

A  gree: ‘Our current voting system gives us the best possible government.’

49 43 59

Corruption perceived as a most important problem

A  gree: ‘Our current voting system enables voters to hold individual Members of Parliament (MPs) accountable for their actions.’

54 44 59 61

Satisfied with government anticorruption efforts

60 66

A  gree: ‘Our voting system should be changed so that voters decide who is included on party lists in elections.’

50

Dissatisfied with government anticorruption efforts

42 59 0 10 20 30 40 50 60 70 Percentage of respondents

Source: SASAS 2017 (HSRC 2019)

and half (42−50%) of those who are dissatisfied with government actions to curb corruption hold such views of the electoral system in its current configuration. The demand for reforms that would enable more direct accountability to constituencies, particularly by enabling voters to have a say regarding party list candidates, is nonetheless favoured by a majority in both cases. Those satisfied with government anti-corruption efforts are actually more emphatic about this than the dissatisfied (66% versus 59%). It would seem, therefore, that those critical of anti-corruption efforts have considerable misgivings about the functioning of the electoral system and the level of accountability it offers, leading to appeals for a greater voter say over party candidates in elections. Those believing that government is performing well in the fight against corruption hold generally favourable views of the electoral system but feel that further improvements could be achieved through reform.

Corruption perceptions and reported electoral behaviour The preceding results focus on the association between corruption perceptions and electoral attitudes. We now consider the association between views on corruption and electoral behaviour, focusing in particular on reported voter registration and the intention to vote. The first key finding is that the corruption perceptions measures that we examined exhibit no distinct association with reported voter registration. As depicted in Table 6.3, the self-reported registration patterns vary only nominally (fluctuating between 0% 144

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Table 6.3 Corruption perceptions and reported voter registration, South Africa, 2018–19 Corruption perceived as a most important problem (%)

Satisfaction with government anticorruption efforts (%)

No

Yes

Difference

Satisfied

Registered as a voter

67

68